666 

B6 

MAIN 


ARGUMENT 


GEORGE  S.  BOUTWELL, 


ONE  OF  TIIE  MANAGERS  ON  THE  PART  OF  THE  HOUSE  OF  REPRESENTATIVES, 


BEFORE 


THE  SENATE  OF  THE  UNITED  STATES, 

SITTING  FOR 

TIIE  TRIAL  OF  ANDREW  JOHNSON, 

PRESIDENT  OF  THE  UNITED  STATES, 

IMPEACHED  OF  HIGH  CRIMES  AND  MISDEMEANORS. 

APRIL  22  AXD  23,  1868. 


WASHINGTON: 
F.  &  J.  RIVES  &  GEO.  A.  BAILEY, 

REPORTERS  A^D  PRINTERS  OF  TUB  DEBATES  OF  CONGRESS 

1868. 


FRED  LOCKLEY 

RARE  WESTERN  BOOKS 

4227  S.  E.  Stark  St. 
PORTLAND,  ORE 


JDV 


AUGUMENT. 


WEDNESDAY,  APRIL  22,  1868. 


Hon.  GEORGE  S.  BOUTWELL,  on  behalf 
of  the  Managers,  addressed  the  Senate,  as 
follows: 

Mr.  PRESIDENT,  SENATORS:  The  importance 
of  this  occasion  is  due  to  the  unexampled  cir 
cumstance  that  the  Chief  Magistrate  of  the 
principal  Republic  of  the  world  is  on  trial  upon 
the  charge  that  he  is  guilty  of  high  crimes  and 
misdemeanors  in  office.  The  solemnity  of  this 
occasion  is  due  to  the  circumstance  that  this 
trial  is  a  new  test  to  our  public  national  virtue 
and  also  of  the  strength  and  vigor  of  popular 
government.  The  trial  of  a  great  criminal  is 
not  an  extraordinary  event,  even  when  fol 
lowed  by  conviction  and  the  severest  penalty 
known  to  the  laws.  This  respondent  is  not  to 
be  deprived  of  life,  liberty,  or  property.  The 
object  of  this  proceeding  is  not  the  punishment 
of  the  offender,  but  the  safety  of  the  State.  As 
the  daily  life  of  the  wise  and  just  magistrate 
is  an  example  for  good,  cheering,  encouraging, 
and  strengthening  all  others,  so  the  trial  and 
conviction  of  a  dishonest  or  an  unfaithful 
officer  is  a  warning  to  all  men,  and  especially 
to  such  as  occupy  places  of  public  trust. 
ISSUES. 

The  issues  of  record  between  the  House  of 
Representatives  and  Andrew  Johnson,  Presi 
dent  of  the  United  States,  are  technical  and 
limited.  We  have  met  the  issues,  and,  as  we 
believe,  maintained  the  cause  of  the  House  of 
Representatives  by  evidence  direct,  clear,  and 
conclusive.  Those  issues  require  you  to  ascer 
tain  and  declare  whether  Andrew  Johnson, 
Prepldent  of  the  United  States,  is  guilty  of 
high  crimes  and  misdemeanors  as  set  forth  in 
the  several  articles  of  impeachment  exhibited 
against  him,  and  especially  whether  he  has 


violated  the  laws  or  the  Constitution  of  the 
country  in  the  attempt  which  he  made  on  the 
21st  of  February  last  to  remove  Edwin  M. 
Stanton  from  the  office  of  Secretary  for  the 
Department  of  War,  and  to  appoint  Lorenzo 
Thomas  Secretary  of  War  ad  interim. 

These  are  the  issues  disclosed  by  the  record. 
They  appear  in  the  statement  to  be  limited  in 
their  nature  and  character  ;  but  your  final  ac 
tion  thereon  involves  and  settles  questions  of 
public  policy  of  greater  magnitude  than  any 
which  have  been  considered  in  the  political  or 
judicial  proceedings  of  the  country  since  the 
adoption  of  the  Constitution. 

DEFENSE. 

Mr.  Johnson  attempts  to  defend  his  conduct- 
in  the  matter  of  the  removal  of  Mr.  Stanton  by 
an  assertion  of  "the  power  at  any  and  all  times 
of  removing  from  office  all  executive  officers  for 
cause  to  be  judged  of  by  the  President  alone." 

This  claim  manifestly  extends  to  the  officers 
of  the  Army  and  of  the  Navy,  of  the  civil  and 
the  diplomatic  service.  He  thus  assumes  and 
demands  for  himself  and  for  all  his  successors 
absolute  control  over  the  vast  and  yearly  in 
creasing  patronage  of  this  Government.  This 
claim  has  never  been  before  asserted,  and 
surely  it  has  never  been  sanctioned  ;  nor  is 
there  a  law  or  usage  which  furnishes  any  ground 
for  justification,  even  the  least. 

Heretofore  the  Senate  has  always  been  con 
sulted  in  regard  to  appointments,  and  during 
the  sessions  of  the  Senate  it  has  always  been 
consulted  in  regard  to  removals  from  office. 
The  claim  now  made,  if  sanctioned,  strips  the 
Senate  of  all  practical  power  in  the  premises, 
and  leaves  the  patronage  of  office,  the  revenues 
and  expenditures  of  the  country  in  the  hands 


M35387 


of  the  President  alone.  Who  does  not  see  that 
the  power  of  the  Senate  to  act  upon  and  con 
firm  a  nomination  is  a  barren  power,  as  a  means 
of  protecting  the  public  interests,  if  the  person 
so  confirmed  may  be  removed  from  his  office 
at  once  without  the  advice  and  consent  of  the 
Senate?  If  this  dainr shall  be  conceded  the 
President  is  clothed  with  power  to  remove  every 
person  who  refuses  to  become  his  instrument. 

An  evil-minded  President  may  remove  all 
loyal  and  patriotic  officers  from  the  Army,  the 
Navy,  the  civil  and  the  diplomatic  service,  and 
nominate  only  his  adherents  and  friends.  None 
but  his  friends  can  remain  in  office ;  none  but 
his  friends  can  be  appointed  to  office.  What 
security  remains  for  the  fidelity  of  the  Army 
and  the  Navy?  What  security  for  the  collec 
tion  of  the  public  revenues?  What  account 
ability  remains  in  any  branch  of  the  public 
service?  Every  public  officer  is  henceforth  a 
mere  dependent  upon  the  Executive.  Here 
tofore  the  Senate  could  say  to  the  President, 
"You  shall  not  remove  a  faithful,  honest  public 
officer. ' '  This  power  the  Senate  has  possessed 
and  exercised  for  nearly  eightjjyyears,  under 
and  by  virtue  of  express  authority  granted  in 
the  Constitution.  Is  this  authority  to  be  sur 
rendered?  Is  this  power  of  the  Senate,  this 
prerogative  we  may  almost  call  it,  to  be  aban 
doned?  Has  the  country,  has  the  Senate,  in 
the  exercise  of  its  legislative,  executive,  or  judi 
cial  functions,  fully  considered  these  broader 
and  graver  issues  touching  and  affecting  vitally 
our  institutions  and  system  of  government? 

The  House  of  Representatives  has  brought 
Andrew  Johnson,  President  of  the  United 
States,  to  the  bar  of  this  august  tribunal,  and 
has  here  charged  him  with  high  crimes  and 
misdemeanors  in  office.  He  meets  the  charge 
by  denying  and  assailing  the  ancient,  un 
doubted,  constitutional  powers  of  the  Senate. 
This  is  the  grave,  national,  historical,  consti 
tutional  issue.  When  you  decide  the  issues 
of  record,  which  appear  narrow  and  technical, 
you  decide  these  greater  issues  also. 

The  Managers  on  the  part  of  the  House  of 
Representatives,  as  time  and  their  abilities 
may  permit,  intend  to  deal  with  the  criminal 
and  with  these  his  crimes,  and  also  to  examine 
the  constitutional  powers  of  the  President  and 
of  the  Senate.  I  shall  first  invite  your  atten 
tion,  Senators,  to  the  last-mentioned  topics. 

It  is  necessary,  in  this  discussion,  to  con 
sider  the  character  of  the  Government,  and 
especially  the  di-stribution  of  powers  and  the 
limitations  placed  by  the  Constitution  upon  the 
executive,  judicial,  and  legislative  depart 
ments. 

TENTH  AMENDMENT. 

The  tenth  amendment  to  the  Constitution 
provides  that  "the  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  pro 
hibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people." 

This  provision  is  not  to  be  so  construed  as 
to  defeat  the  objects  for  which,  tue  Constitution 


itself  was  established;  and  it  follows,  neces 
sarily,  that  the  three  departments  of  the  Gov 
ernment  possess  sufficient  power  collectively  to 
accomplish  those  objects. 

It  will  be  seen  from  an  examination  of  the 
grants  of  power  made  to  the  several  depart 
ments  of  the  Government  that  there  is  a  differ 
ence  in  the  phraseology  employed,  and  that  the 
legislative  branch  alone  is  intrusted  with  dis 
cretionary  authority.  The  first  section  of  the 
first  article  provides  that  "all  legislative  powers 
herein  granted  shall  be  vested  in  a  Congress  of 
the  United  States,  which  shall  consist  of  a 
Senate  and  House  of  Representatives." 

The  first  section  of  the  second  article  pro 
vides  that  "  executive  power  shall  be  vested  in 
a  President  of  the  United  States  of  America;" 
and  the  first  section  of  the  third  article  pro 
vides  that  "the  judicial  power  of  the  United 
States  shall  be  vested  in  one  Supreme  Court, 
and  in  such  inferior  courts  as  the  Congress 
may,  from  time  to  time,  ordain  and  establish." 
The  words  "herein  granted,"  as  used  in  the 
first  section  of  the  first  article  of  the  Constitu 
tion,  are  of  themselves  words  of  limitation  upon 
the  legislative  powers  of  Congress,  confining 
those  powers  within  the  authority  expressed  in 
the  Constitution.  The  absence  of  those  words 
in  the  provisions  relating  to  the  executive  and 
judicial  departments  does  not,  as  might  at  first 
be  supposed,  justify  the  inference  that  unlimited 
authority  is  conferred  upon  those  departments. 
An  examination  of  the  Constitution  shows  that 
the  executive  and  judicial  departments  have 
no  inherent  vigor  by  which,  under  the  Con 
stitution,  they  are  enabled  to  perform  the  func 
tions  delegated  to  them,  while  the  legislative 
department,  in  noticeable  contrast,  is  clothed 
with  authority  "to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  exe 
cution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  Gov 
ernment  of  the  United  /States,  or  any  depart 
ment  or  officer  thereof. ' ' 

By  virtue  of  this  provision  the  Constitution 
devolves  upon  Congress  the  duty  of  providing 
by  legislation  for  the  full  execution  not  only  of 
the  powers  vested  in  Congress,  but  also  of  pro 
viding  by  legislation  for  the  execution  of  those 
powers  which,  by  the  Constitution,  are  vested 
in  the  executive  and  judicial  departments. 
The  legislative  department  has  original  power 
derived  from  the  Constitution  by  which  it  can 
set  and  keep  itself  in  motion  as  a  branch  of  the 
Government,  while  the  executive  and  judicial 
departments  have  no  self- executing  constitu 
tional  capacity,  but  are  const»«rt}'  dependent 
upon  the  legislative  d^xtftrnent.  Nor  does 
it  follow,  as  mighjr'tfpon  slight  attention  be 
assumed,  that-the  executive  power  given  to  the 
President  is  an  unlimited  power,  or  that  it  an 
swers  or  corresponds  to  the  powers  which  have 
been  or  may  be  exercised  by  the  executive  of 
any  other  Government.  The  President  of  the 
United  States  is  not  endowed  by  the  Constitu 
tion  with  the  executive  power  which  was  pos- 


sesscd  by  Henry  VIII  or  Queen  Elizabeth,  or 
by  any  ruler  in  any  other  country  or  time,  but 
only  with  the  power  expressly  granted  to  him 
by  the  Constitution  and  with  such  other  powers 
as  have  been  conferred  upon  him  by  Congress 
for  the  purpose  of  carrying  into  effect  the 
powers  which  are  granted  to  the  President  by 
the  Constitution.  Hence  it  may  be  asserted 
that  whenever  thePresident'attempts  to  exer 
cise  any  power  he  must,  if  his  right  be  ques 
tioned,  find  a  specific  authority  in  the  Consti 
tution  or  laws.  By  the  Constitution  he  is 
Commander-in-Chief  of  the  Army  and  Navy; 
but  it  is  for  Congress  to  decide,  in  the  first 
place,  whether  there  shall  be  an  Army  or  Navy, 
and  the  President  must  command  the  Army  or 
Navy  as  it  is  created  by  Congress,  and  subject, 
as  is  every  other  officer  of  the  Army  and  Navy, 
to  such  rules  and  regulations  as  Congress  may 
from  time  to  time  establish. 

The  President  "may  require  the  opinion  in 
writing  of  the  principal  officer  in  each  of  the 
Executive  Departments  upon  any  subject  re 
lating  to  the  duties  of  their  respective  offices," 
but  the  executive  offices  themselves  are  created 
by  Congress,  and  the  duties  of  each  officer  are 
prescribed  by  law.  In  fine,  the  power  to  set 
the  Government  in  motion  and  to  keep  it  in 
motion  is  lodged  exclusively  in  Congress  un 
der  the  provisions  of 'the  Constitution. 

By  our  system  of  Government  the  sovereignty 
is  in  the  people  of  the  United  States,  and  that 
sovereignty  is  fully  expressed  in  the  preamble 
to  the  Constitution.  By  the  Constitution  the 
people  have  vested  discretionary  power — lim 
ited,  it  is  true — in  the  Congress  of  the  United 
States,  while  they  have  denied  to  the  execu 
tive  and  judicial  departments  all  discretionary 
or  implied  power  whatever. 

The  nature  and  extent  of  the  powers  con 
ferred  by  the  Constitution  upon  Congress  have 
been  clearly  and  fully  set  forth  by  the  Supreme 
Court.  (McCulioch  vs.  The  State  of  Maryland, 
4  Wheaton,  pp.  409  and  420.)  The  court, 
in  speaking  of  the  power  of  Congress,  say  : 

"The  Government,  which  has  a  right  to  do  an  act, 
and  has  imposed  on  it  the  duty  of  performing  that 
act,  must,  according  to  the  dictates  of  reason,  be 
allowed  to  select  the  means." 

Again,  they  say : 

"We  admit,  as  all  must  admit,  that  the  powers  of 
tVve  Government  are  limited,  and  that  these  limits 
are  not  to  be  transcended;  but  we  think  the  sound 
construction  of  the  Constitution  must  allow  to  the 
rational  Legislature  that  discretion,  with  respect  to 
the  means  by  which  the  powers  it  confers  are  to  be 
carried  into  execution,  which  will  enable  that  body 
to  perform  the  high  duties  assigned  to  it  in  the  man 
ner  most  beneficial  to  the  people.  Let  the  thing  be 
legitimate,  let  it  bo  within  the  scope  of  the  Constitu 
tion,  and  all  nicauswuioh  are  appropriate,  which  are 
plainly  adapted  to  the  end.  which  are  not  prohibited, 
and  consistent  with  the  letter  ami  spirit  of  the  Con 
stitution,  are  constitutional." 

It  is  also  worthy  of  remark,  in  this  connec 
tion,  that  the  article  which  confers  legislative 
powers  upon  the  Congress  of  the  United  States 
declares  that  all  legislative  powers  herein 
granted — that  is,  granted  in  the  Constitution — 


shall  be  vested  in  the  Congress  of  the  United 
States  ;  while  in  the  section  relating  to  the 
powers  of  the  President  it  is  declared  that  the 
executive  power  shall  be  vested  in  a,  President 
of  the  United  States  of  America.  .The  in 
ference  from  this  distinction  is  in  harmony 
with  what  has  been  previously  stated.  "  The 
executive  power"  spoken  of  is  that  which  is 
conferred  upon  the  President  by  the  Constitu 
tion,  and  it  is  limited  by  the  terms  of  the  Con 
stitution,  and  must  be  exercised  in  the  manner 
prescribed  by  the  Constitution.  The  words 
used  are  to  be  interpreted  according  to  their 
ordinary  meaning. 

It  is  also  worthy  of  remark  that  the  Consti 
tution,  in  terms,  denies  to  Congress  various 
legislative  powers  specified.  It  denies  also  to 
the  United  States  various  powers,  and  various 
powers  enumerated  are  likewise  denied  to  the 
States.  There  is  but  one  denial  of  power  to 
the  President,  and  that  is  a  limitation  of  an 
express  power  granted.  The  single  instance 
of  a  denial  of  power  to  the  President  is  in  that 
provision  of  the  Constitution  wherein  he  is 
authorized  "  to  grant  reprieves  and  pardons 
for  offenses  against  the  United  States,  except 
in  cases  of  impeachment."  As  the  powers 
granted  to  the  President  are  specified,  and  as 
he  takes  nothing  by  implication  or  inference, 
there  was  no  occasion  to  recite  or  enumerate 
powers  not  delegated  to  him.  As  the  Consti 
tution  clothes  Congress  with  powers  of  legis 
lation  which  are  ample  for  all  the  necessities 
of  national  life,  wherein  there  is  opportunity 
for  the  exercise  of  a  wide  discretion,  it  was 

j  necessary  to  specify  such  powers  as  are  pro 
hibited  to  Congress.  The  powers  of  Congress 

|  are  ascertained  by  considering  as  well  what  is 
prohibited  as  what  is  granted,  while  the  powers 

I  of  the  Executive  are  to  be  ascertained  clearly 

I  and  fully  by  what  is  granted.  Where  there  is 
nothing  left  to  inference,  implication,  or  dis 
cretion,  there  is  no  necessity  for  clauses  or 
provisions  of  inhibition.  In  the  single  case 
of  the  grant  of  the  full  power  of  pardon  to  the 
President,  a  power  unlimited  in  its  very  nature, 
the  denial  of  the  power  to  pardon  in  case  of 
impeachment  became  necessary.  This  exam 
ple  fully  illustrates  and  establishes  the  position 
to  which  I  now  ask  your  assent.  If  this  view 
be  correct  it  follows  necessarily,  as  has  been 
before  stated,  that  the  President,  acting  under 
the  Constitution,  can  exercise  those  powers 
only  which  are  specifically  conferred  upon  him, 
and  can  take  nothing  by  construction,  by  im 
plication,  or  by  what  is  sometimes  termed  the 
necessity  of  the  case. 

But  in  every  Government  there  should  be  in 
its  constitution  capacity  to  adapt  the  adminis 
tration  of  affairs  to  the  changing  conditions  of 
national  life.     In  the  Government  of  the  Uni 
ted  States  this  capacity  is  found  in  Congress, 
in  virtue  of  the  provision  already  quoted,  by 
which  Congress  is  authorized  "to  make  all      j 
laws  which  shall  be  necessary  and  proper  for    .' 
carrying  into  execution  the  foregoing  powers,    . 


(i.  6.,  the  powers  given  to  Congress,)  and  all 
other  powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any 
department  or  officer  thereof." 

It  is  made  the  duty  of  the  President,  "  from 
time  to  time,  to  give  to  the  Congress  informa 
tion  of  the  state  of  the  Union,  and  recommend 
to  their  consideration  such  measures  as  he  shall 
judge  necessary  and  expedient." 

Provision  is  also  made  in  the  Constitution 
for  his  cooperation  in  the  enactment  of  laws. 
Thus  it  is  in  his  power  to  lay  before  Congress 
the  reasons  which,  in  his  opinion,  may  at  any 
time  exist  for  legislative  action  in  aid  of  the 
executive  powers  conferred  by  the  Constitu 
tion  upon  the  President;  and  under  the  ample 
legislative  powers  secured  to  Congress  by  the 
provisions  already  quoted  there  is  no  reason 
in  the  nature  of  the  Government  why  the  con 
stitutional  and  lawful  powers  of  the  Executive 
may  not  be  made  adequate  to  every  emergency 
of  the  country.  In  fine,  the  President  maybe 
said  to  be  governed  by  the  principles  which 
govern  the  judge  in  a  court  of  law.  He  must 
take  the  law  and  administer  it  as  he  finds  it 
without  any  inquiry  on  his  part  as  to  the  wis 
dom  of  the  legislation.  So  the  President,  with 
reference  to  the  measure  of  his  own  powers, 
must  take  the  Constitution  and  the  laws  of  the 
country  as  they  are,  and  be  governed  strictly 
by  them.  If,  in  any  particular,  by  implica 
tion  or  construction,  he  assumes  and  exercises 
authority  not  granted  to  him  by  the  Constitu 
tion  or  the  laws  he  violates  his  oath  of  office, 
by  which,  under  the  Constitution,  it  is  made 
his  duty  "  to  take  care  that  the  laws  be  faith 
fully  executed,"  which  implies  necessarily  that 
he  can  go  into  no  inquiry  as  to  whether  the 
laws  are  expedient  or  otherwise ;  nor  is  it 
within  his  province,  in  the  execution  of  the 
law,  to  consider  whether  it  is  constitutional. 
In  his  communications  to  Congress  he  may 
consider  and  discuss  the  constitutionality  of 
existing  or  proposed  legislation,  and  when  a 
bill  is  passed  by  the  two  Houses  and  submitted 
to  him  for  approval  he  may,  if  in  his  opinion 
the  same  is  unconstitutional,  return  it  to  the 
House  in  which  it  originated  with  his  reasons. 
In  the  performance  of  these  duties  he  exhausts 
his  constitutional  power  in  the  work  of  legis 
lation.  If,  notwithstanding  his  objections,  Con 
gress,  by  a  two-thirds  majority  in  each  House, 
shall  pass  the  bill,  it  is  then  the  duty  of  the 
President  to  obey  and  execute  it,  as  it  is  his 
duty  to  obey  and  execute  all  laws  which  he  or 
liis  predecessors  may  have  approved. 

If  a  law  be  in  fact  unconstitutional  it  may 
be  repealed  by  Congress,  or  it  may,  possibly, 
when  a  case  duly  arises,  be  annulled  in  its  un 
constitutional  features  by  the  Supreme  Court 
of  the  United  States.  The  repeal  of  the  law  is 
a  legislative  act ;  the  declaration  by  the  court 
that  it  is  unconstitutional  is  a  judicial  act;  but 
the  power  to  repeal  or  to  annul  or  to  set  aside 
a  law  of  the  United  States  is  in  no  aspect  of 
the  case  an  executive  power.  It  is  made  the 


duty  of  the  Executive  to  take  care  that  the  laws 
oe  faithfully  executed — an  injunction  wholly 
inconsistent  with  the  theory  that  it  is  in  the 
power  of  the  Executive  to  repeal  or  annul  or 
dispense  with  the  laws  of  the  land.  To  the 
President  in  the  performance  of  his  executive 
duties  all  laws  are  alike.  He  can  enter  into  no 
inquiry  as  to  their  expediency  or  constitution 
ality.  All  laws  are  presumed  to  be  constitu 
tional,  and,  whether  in  fact  constitutional  or  not, 
it  is  the  duty  of  the  Executive  so  to  regard  them 
while  they  have  the  form  of  law.  When  a 
statute  is  repealed  for  its  unconstitutionality,  or 
for  any  other  reason,  it  ceases  to  be  law  in  form 
and  in  fact.  When  a  statute  is  annulled  in 
whole  or  in  part  by  the  opinion  of  a  competent 
judicial  tribunal,  from  that  moment  it  ceases 
to  be  law.  But  the  respondent  and  the  counsel 
for  the  respondent  will  seek  in  vain  for  any 
authority  or  color  of  authority  in  the  Constitu 
tion  or  the  laws  of  the  country  by  which  the 
President  is  clothed  with  power  to  make  any 
distinction  upon  his  own  judgment,  or  upon  the 
judgment  of  any  friends  or  advisers,  whether 
private  or  official  persons,  between  the  several 
statutes  of  the  country,  each  and  every  one  of 
which  he  is.  by  the  Constitution  and  by  his  oath 
of  office,  required  faithfully  to  execute.  Hence 
it  follows  that  the  crime  of  the  President  is  not, 
either  in  fact  or  as  set  forth  in  the  articles  of 
impeachment,  that  he  has  violated  a  constitu 
tional  law,  but  his  crime  is  that  he  has  violated 
a  law,  and  in  his  defense  no  inquiry  can  be 
made  whether  the  law  is  constitutional;  for 
inasmuch  as  he  had  no  constitutional  power  to 
inquire  for  himself  whether  the  law  was  con 
stitutional  or  not,  so  it  is  no  excuse  for  him  that 
he  did  unlawfully  so  inquire  and  came  to  the 
conclusion  that  the  law  was  unconstitutional. 

It  follows,  from  the  authorities  already 
quoted  and  the  positions  founded  thereon,  that 
there  can  be  no  inquiry  here  and  now  by  this 
tribunal  whether  the  act  in  question — the  act 
entitled  "An  act  regulating  the  tenure  of  cer 
tain  civil  offices" — is  in  fact  constitutional  or 
not.  It  was  and  is  the  laAv  of  the  land.  1 1  was 
enacted  by  a  strict  adherence  to  constitutional 
forms.  It  was  and  is  binding  upon  all  the 
officers  and  departments  of  the  Government. 
The  Senate,  for  the  purpose  of  deciding  whether 
the  respondent  is  innocent  or  guilty,  can  enter 
into  no  inquiry  as  to  the  constitutionality  of  the 
act,  which  it  was  the  President's  duty  to  exe 
cute,  and  which,  upon  his  own  answer,  and  by 
repeated  official  confessions  and  admissions,  he 
intentionally,  willfully,  deliberately  set  aside 
and  violated. 

If  the  President,  in  the  discharge  of  his  duty 
"to  take  care  that  the  laws  be  faithfully  exe 
cuted,"  may  inquire  whether  the  laws  are  con 
stitutional,  and  execute  those  only  which  he 
believes  to  be  so,  then,  for  the  purposes  of  gov 
ernment,  his  will  or  opinion  is  substituted  for 
the  action  of  the  law-making  power,  and  the 
Government  is  no  longer  a  Government  of  laws, 
but  the  Government  of  one  man.  This  is  also 


true,  if,  when  arraigned,  he  may  justify  by  show 
ing  that  he  has  acted  upon  advice  that  the  law 
was  unconstitutional.  Further,  if  the  Senate 
sitting  for  the  trial  of  the  President  may  inquire 
and  decide  whether  the  law  is  in  fact  constitu 
tional,  and  convict  the  President  if  he  has  vio 
lated  an  act  believed  to  be  constitutional,  and 
acquit  him  if  the  Senate  think  the  law  uncon 
stitutional,  then  the  President  is  in  fact  tried 
for  his  judgment,  to  be  acquitted  if  in  the  opin 
ion  of  the  Senate  it  was  a  correct  judgment,  and 
convicted  if  in  the  opinion  of  the  Senate  his 
judgment  was  erroneous.  This  doctrine  offends 
every  principle  of  justice.  His  offense  is  that 
he  intentionally  violated  a  law.  Knowing  its 
terms  and  requirements,  he  disregarded  them. 
With  deference  I  maintain  still  further  that 
it  is  not  the  right  of  any  Senator  in  this  trial 
to  be  governed  by  any  opinion  he  may  enter 
tain  of  the  constitutionality  or  expediency  of 
the  law  in  question.  For  the  purposes  of  this 
trial  the  statute  which  the  President,  upon  his 
own  confession,  has  repeatedly  violated  is  the 
law  of  the  land.  His  crime  is  that  he  violated 
the  law.  It  has  not  been  repealed  by  Congress  ; 
it  has  not  been  annulled  by  the  Supreme  Court ; 
it  stands  upon  the  statute-book  as  the  law  ;  and 
for  the  purposes  of  this  trial  it  is  to  be  treated 
by  every  Senator  as  a  constitutional  law.  Other 
wise  it  follows  that  the  President  of  the  United 
States,  supported  by  a  minority  exceeding  by 
one  a  third  of  this  Senate,  may  set  aside,  dis 
regard,  and  violate  all  the  laws  of  the  land.  It 
is  nothing  to  this  respondent,  it  is  nothing  to 
this  Senate,  sitting  here  as  a  tribunal  to  try  and 
judge  this  respondent,  that  the  Senators  par 
ticipated  in  the  passage  of  the  act,  or  that  the 
respondent,  in  the  exercise  of  a  constitutional 
power,  returned  the  bill  to  the  Senate  with  his 
objections  thereto.  The  act  itself  is  as  bind 
ing,  is  as  constitutional,  is  as  sacred  in  the  eye 
of  the  Constitution  as  the  acts  that  wer.e  passed 
at  the  first  session  of  the  First  Congress.  If 
the  President  may  refuse  to  execute  a  law  be 
cause  in  his  opinion  it  is  unconstitutional,  or 
for  the  reason  that,  in  the  judgment  of  his 
friends  and  advisers,  it  is  unconstitutional,  then 
he  and  his  successors  in  office  may  refuse  to 
execute  any  statute  the  constitutionality  of 
which  has  not  been  affirmatively  settled  by  the 
Supreme  Court  of  the  United  States.  If  a 
minority,  exceeding  one  third  of  this  Senate 
by  one,  may  relieve  the  President  from  all  re 
sponsibility  for  this  violation  of  his  oath  of 
office,  because  they  concur  with  him  in  the 
opinion  that  this  legislation  is  either  unconsti 
tutional  or  of  doubtful  constitutionality,  then 
there  isnosecurityfortheexecutionofthelaws. 
The  constitutional  injunction  upon  the  Presi 
dent  is  to  take  care  that  the  kws  be  faithfully 
executed  ;  and  upon  him  no  power  whatsoever 
is  conferred  by  the  Constitution  to  inquire 
whether  the  law  that  he  is  charged  to  execute 
is  or  is  not  constitutional.  The  constitutional 
injunction  upon  you,  in  your  present  capacity, 
is  to  hold  the  respondent  faithfully  to>  the  exe 


cution  of  the  constitutional  trusts  and  duties 
imposed  upon  him.  If  he  has  willfully  disre 
garded  the  obligation  resting  upon  him,  to  take 
care  that  the  laws  be  faithfully  executed,  then 
the  constitutional  duty  imposed  upon  you  is  to 
convict  him  of  the  crime  of  having  willfully 
disregarded  the  laws  of  the  land  and  violated 
his  oath  of  office. 

I  indulge,  Senators,  in  great  plainness  of 
speech,  and  pursue  a  line  of  remark  which, 
were  the  subject  less  important  or  the  duty 
resting  upon  us  less  solemn,  I  should  studiously 
avoid.  But  I  speak  with  every  feeling  and  sen 
timent  of  respect  for  this  body  and  this  place 
of  which  my  nature  is  capable.  In  my  boy 
hood,  from  the  gallery  of  the  old  Chamber  of 
the  Senate,  I  looked,  not  with  admiration 
merely,  but  with  something  of  awe  upon  the 
men  of  that  generation  who  were  then  in  the 
seats  which  you  now  fill.  Time  and  experi 
ence  may  have  modified  and  chastened  those 
impressions,  but  they  are  not,  they  cannot  be 
obliterated.  They  will  remain  with  me  while 
life  remains.  But,  with  my  convictions  of  my 
own  duty,  with  my  convictions  of  your  duty, 
with  my  convictions  of  the  danger,  the  immi 
nent  peril,  to  our  country  if  you  should  not 
render  a  judgment  of  guilty  against  this  re 
spondent,  I  have  no  alternative  but  to  speak 
with  all  the  plainness  and  directness  which 
the  most  earnest  convictions  of  the  truth  of 
what  I  utter  can  inspire. 
MOTIVE. 

Nor  can  the  President  prove  or  plead  the 
motive  by  which  he  professes  to  have  been 
governed  in  his  violation  of  the  laws  of  the 
country.  Where  a  positive  specific  duty  is 
imposed  upon  a  public  officer  his  motives  can 
not  be  good  if  he  willfully  neglects  or  refuse^ 
to  discharge  his  duty  in  the  manner  in  which, 
it  is  imposed  upon  him.  In  other  words,  it  is 
not  possible  for  a  public  officer,  and  particu 
larly  for  the  President  of  the  United  States, 
who  is  under  a  special  constitutional  injunc 
tion  to  discharge  his  duty  faithfully,  to  have 
any  motive  except  a  bad  motive  if  he  willfully 
violates  his  duty.  A  judge,  to  be  sure,  in  the 
exercise  of  a  discretionary  power,  as  in  im 
posing  a  sentence  upon  a  criminal,  where  the 
penalty  is  not  specific,  may  err  in  the  exercise 
of  that  discretion  and  plead  properly  his  good 
motives  in  the  discharge  of  his  duty ;  that  is, 
he  may  say  that  he  intended,  under  the  law, 
to  impose  a  proper  penalty ;  and  inasmuch  as 
that  was  his  intention,  though  all  other  men 
may  think  that  the  penalty  was  either  insuffi 
cient  or  excessive,  he  is  fully  justified  by  his 
motives. 

So  the  President,  having  vested  in  him  dis 
cretionary  power  in  regard  to  granting  par 
dons,  might,  if  arraigned  for  the  improper  ex 
ercise  of  that  power  in  a  particular  case,  plead 
and  prove  his  good  motives,  although  his  action 
might  be  universally  condemned  as  improper 
or  unwise  in  that  particular  case.  But  the 
circumstances  of  this  respondent  are  wholly 


8 


different.  The  law  which,  as  he  admits,  he  has 
intentionally  and  deliberately  violated,  was 
mandatory  upon  him,  and  left  in  his  hands  no 
discretion  as  to  whether  he  would,  in  a  given 
case,  execute  it  or  not. 

A  public  officer  can  neither  plead  nor  prove 
good  motives  to  refute  or  control  his  own  ad 
mission  that  he  has  intentionally  violated  a 
public  law. 

Take  the  case  of  the  President;  his  oath  is  : 

"I  do  solemnly  swear  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States,  and  will 
to  the  best  of  my  ability  preserve,  protect,  and  de 
fend  the  Constitution  of  the  United  States." 

One  of  the  provisions  of  that  Constitution  is 
that  the  President  shall  "take  care  that  the 
laws  be  faithfully  executed."  In  this  injunc 
tion  there  are  no  qualifying  words.  It  is  made 
his  duty  to  take  care  that  the  laws,  the  laws,  be 
faithfully  executed.  A  law  is  well  defined  to 
be  "  a  rule  laid,  set,  or  established  by  the  law- 
making  power  of  the  country."  It  is  of  such 
rules  that  the  Constitution  speaks  in  this  in 
junction  to  the  President ;  and  in  obedience  to 
that  injunction,  and  with  reference  to  his  duty 
under  his  oath  to  take  care  that  the  laws  be 
faithfully  executed,  he  can  enter  into  no  in 
quiry  as  to  whether  those  laws  are  expedient 
or  constitutional,  or  otherwise.  And  inasmuch 
as  it  is  not  possible  for  him,  under  the  Consti 
tution,  to  enter  lawfully  into  any  such  inquiry, 
it  is  alike  impossible  for  him  to  plead  or  to 
prove  that,  having  entered  into  such  inquiry, 
which  was  in  itself  unlawful,  he  was  governed 
by  a  good  motive  in  the  result  which  he  reached 
and  in  his  action  thereupon.  Having  no  right 
to  inquire  whether  the  laws  were  expedient  or 
constitutional,  or  otherwise,  if  he  did  so  inquire, 
and  if  upon  such  inquiry  he  came  to  the  con 
clusion  that,  for  any  reason,  he  would  not  exe 
cute  the  law  according  to  the  terms  of  the  law, 
then  he  willfully  violated  his  oath  of  office  and 
the  Constitution  of  the  United  States.  The 
necessary,  the  inevitable  presumption  in  law 
is,  that  he  acted  under  the  influence  of  bad 
motives  in  so  doing,  and  no  evidence  can  be 
introduced  controlling  or  coloring  in  any  degree 
this  necessary  presumption  of  the  law. 

Having,  therefore,  no  right  to  entertain  any 
motive  contrary  to  his  constitutional  obligation 
to  execute  the  laws,  he  cannot  plead  his  mo 
tive.  Inasmuch  as  he  can  neither  plead  nor 
prove  his  motive,  the  presumption  of  the  law 
must  remain  that  in  violating  his  oath  of  office 
and  the  Constitution  of  the  United  States  he 
was  influenced  by  a  bad  motive.  The  magis 
trate  who  willfully  breaks  the  laws,  in  violation 
of  his  oath  to  execute  them,  insults  and  out 
rages  the  common  sense  and  the  common  na 
ture  of  his  countrymen  when  he  asserts  that 
their  laws  are  so  bad  that  they  deserve  to  be 
broken.  This  is  the  language  of  a  defiant 
usurper,  or  of  a  man  who  has  surrendered  him 
self  to  the  counsel  and  control  of  the  enemies 
of  his  country. 

If  a  President,  believing  the  law  to  be  un 


constitutional,  may  refuse  to  execute  it,  then 
your  laws  for  the  reconstruction  of  the  southern 
States,  your  laws  for  the  collection  of  the  in 
ternal  revenue,  your  laws  for  the  collection  of 
custom-house  duties,  are  dependent  for  their 
execution  upon  the  individual  opinion  of  the 
President  as  to  whether  they  are  constitutional 
or  not ;  and  if  these  laws  are  so  dependent,  all 
other  laws  are  equally  dependent  upon  the  opin 
ion  of  the  Executive.  Hence  it  follows  that, 
whatever  the  legislation  of  Congress  may  be,  the 
laws  of  the  country  are  to  be  executed  only  so 
far  as  the  President  believes  them  to  be  consti 
tutional.  This  respondent  avers  that  his  sole 
object  in  violating  the  tenure-of-office  act  was 
to  obtain  the  opinion  of  the  Supreme  Court 
upon  the  question  of  the  constitutionality  of 
that  law.  In  other  words,  he  deliberately  vio 
lated  the  law,  which  was  in  him  a  crime,  for 
the  purpose  of  ascertaining  judicially  whether 
the  law  could  be  violated  with  impunity  or  not. 
At  that  very  time  he  had  resting  upon  him  the 
obligations  of  a  citizen  to  obey  the  laws,  and  the 
higher  and  more  solemn  obligation,  imposed 
by  the  Constitution  upon  the  first  magistrate  of 
the  country,  to  execute  the  laws.  If  a  private 
citizen  violates  a  law,  he  does  so  at  his  peril.  If 
the  President  or  Vice  President,  or  any  other 
civil  officer,  violates  a  law,  his  peril  is  that  he 
may  be  impeached  by  the  House  of  Represent 
atives  and  convicted  by  the  Senate.  This  is 
precisely  the  responsibility  which  the  respond 
ent  has  incurred  ;  and  it  would  be  no  relief  to 
him  for  his  willful  violation  of  the  law,  in  the 
circumstances  in  which  he  is  now  placed,  if 
the  court  itself  had  pronounced  the  same  to  be 
unconstitutional. 

But  it  is  not  easy  to  comprehend  the  auda 
city,  the  criminal  character  of  a  proceeding 
by  which  the  President  of  the  United  States 
attempts  systematically  to  undermine  the  Gov 
ernment  itself  by  drawing  purposely  into  con 
troversy,  in  the  courts  and  elsewhere,  the 
validity  of  the  laws  enacted  by  the  constituted 
authorities  of  the  country,  who,  as»  much  as 
himself,  are  individually  under  an  obligation 
to  obey  the  Constitution  in  all  their  public 
acts.  With  the  same  reason  and  for  the  same 
object  he  might  violate  the  reconstruction  laws, 
tax  laws,  tariff  acts,  or  the  neutrality  laws  of 
the  country ;  and  thus,  in  a  single  day  of  his 
official  life,  raise  questions  which  could  not  be 
disposed  of  for  years  in  the  courts  of  the  coun 
try.  The  evidence  discloses  the  fact  that  he 
has  taken  no  step  for  the  purpose  of  testing 
the  constitutionality  of  the  law.  He  suspended 
numerous  officers  under,  or,  if  not  under,  at 
least,  as  he  himself  admits,,Hi  conformity  with 
the  tenure-of-office  law,  "showing  that  it  was 
not  his  sole  object  to  test  its  constitutionality. 
He  has  had  opportunity  to  make  application, 
through  the  Attorney  General  for  a  writ  of  quo 
warranto,  which  might  have  tested  the  validity 
of  the  law  in  the  courts.  This  writ  is  the  writ 
of  the  Government,  and  it  can  never  be  granted 
upon  the  application  of  a  private  person.  The 


President  has  never  taken  one  step  to  test  the 
law  in  the  courts.  Since  his  attempted  re 
moval  of  Mr.  Stanton  on  the  '21st  of  February 
last  he  might  have  instituted  proceedings  by  a 
writ  of  quo  ivarranto,  and  by  this  time  have 
obtained,  probably,  a  judicial  opinion  covering 
all  the  points  of  the  case.  But  he  shrinks  from 
the  test  he  says  he  sought.  Thus  is  the  pretext 
of  the  President  fully  exposed.  The  evidence 
shows  that  he  never  designed  to  test  the  law  in 
the  courts.  His  object  was  to  seize  the  offices 
of  the  Government  for  purposes  of  corruption, 
and  by  their  influence  to  enable  him  to  recon 
struct  the  Union  in  the  interest  of  the  rebel 
lious  States.  In  short,  he  resorted  to  this 
usurpation  as  an  efficient  and  necessary  means 
of  usurping  all  power  and  of  restoring  the 
Government  to  rebel  hands. 

No  criminal  was  ever  arraigned  who  offered 
a  more  unsatisfactory  excuse  for  his  crimes. 
The  President  had  no  right  to  do  what  he  says 
he  designed  to  do,  and  the  evidence  shows  that 
he  never  has  attempted  to  do  what  he  now 
assigns  as  his  purpose  when  he  trampled  the 
laws  of  his  country  under  his  feet. 

These  considerations  have  prepared  the  way 
in  some  degree,  I  trust,  for  an  examination  of 
the  provisions  of  the  Constitution  relating  to 
the  appointment  of  embassadors  and  otherpub- 
lic  ministersand  consuls,  judgesof  the  Supreme 
Court,  and  other  officers  of  the  United  States, 
for  whose  appointment  pro  vision  is  made  in  the 
second  section  of  the  second  article  of  the  Con 
stitution.  It  is  there  declared  that  the  Presi 
dent  "shall  nominate,"  and,  by  and  with  the 
consent  of  the  Senate,  shall  "appoint  embas 
sadors  and  other  public  ministers  and  consuls, 
judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States  whose  appoint 
ments  are  not  herein  otherwise  provided  for 
and  which  shall  be  established  by  law."  The 
phrase,  "are  not  herein  .otherwise  provided 
for,"  is  understood  to  refer  to  Senators,  who, 
under  the  Constitution,  in  case  of  a  vacancy, 
may  be  appointed  by  the  Governors  of  the  sev 
eral  States,  and  to  those  appointments  which 
might  be.  confided  by  law  to  the  courts  or  to  the 
heads  of  Departments.  It  is  essential  to  notice 
the  fact  that  neicher  in  this  provision  of  the 
Constitution  nor  in  any  other  is  power  given  to 
the  President  to  remove  any  officer.  The  only 
power  of  removal  specified  in  the  Constitution 
is  that  of  the  Senate,  by  its  verdict  of  guilty,  to 
remove  the  President,  Vice  President,  or  other 
civil  officer  who  may  be  impeached  by  the  House 
of  Representatives  and  presented  to  the  Senate 
for  trial. 

Upon  the  premises  already  laid  down  it  is 
clear  that  the  power  of  removal  from  office  is 
not  vested  in  the  President  alone,  but  only  in 
the  President  by  and  with  the  advice  and  con 
sent  of  the  Senate.  Applying  the  provision 
of  the  Constitution  already  cited  to  the  con 
dition  of  affairs  existing  at  the  time  the  Gov 
ernment  was  organized,  we  find  that  the  course 
pursued  by  the  First  Congress  and  by  the  first 


President  was  the  inevitable  result  of  the 
operation  of  this  provision  of  the  organic  law. 
In  the  first  instance,  several  executive  Depart 
ments  were  established  by  acts  of  Congress, 
and  in  those  Departments  offices  of  various 
grades  were  created.  The  conduct  of  foreign 
affairs  required  the  appointment  of  embas 
sadors,  ministers,  and  consuls,  and  conse 
quently  those  necessary  offices  were  established 
by  law.  The  President,  in  conformity  with 
this  provision  of  the  Constitution,  made  nom 
inations  to  the  Seriate  of  persons  to  fill  the 
various  offices  so  established.  These  nomina 
tions  were  considered  and  acted  upon  by  the 
Senate,  and  when  confirmed  by  the  Senate  the 
persons  so  nominated  were  appointed  and 
authorized  by  commissions  under  the  hand  of 
the  President  to  enter  upon  the  discharge  of 
their  respective  duties.  In  the  nature  of  the 
case  it  was  not  possible  for  the  President,  dur 
ing  a  session  of  the  Senate,  to  assign  to  duty 
in  any  of  the  offices  so  created  any  person  who 
had  not  been  by  him  nominated  to  the  Senate 
and  by  that  body  confirmed,  and  there  is  no 
evidence  that  any  such  attempt  was  made. 
The  persons  thus  nominated  and  confirmed 
were  in  their  offices  under  the  Constitution, 
and  by  virtue  of  the  concurrent  action  of  the 
President  and  the  Senate.  There  is  not  to  be 
found  in  the  Constitution  any  provision  con 
templating  the  removal  of  such  persons  from 
office.  But  inasmuch  as  it  is  essential  to  the 
proper  administration  of  affairs  that  there 
should  be  a  power  of  removal,  and  inasmuch 
as  the  power  of  nomination  and  confirmation 
vested  in  the  President  and  in  the  Senate  is  a 
continuing  power,  not  exhausted  either  by  a 
single  exercise  or  by  a  repeated  exercise  in 
reference  to  a  particular  office,  it  follows  legiti 
mately  and  properly  that  the  President  might 
at  anytime  nominate  to  the  Senate  a  person  to 
fill  a  particular  office,  and  the  Senate,  in  the 
exercise  of  its  constitutional  power,  could  con 
firm  that  nomination,  that  the  person  so  nom 
inated  and  confirmed  would  have  a  right  to 
take  and  enjoy  the  office  to  which  he  had  been  so 
appointed,  and  thus  to  dispossess  the  previous 
incumbent.  It  is  apparent  that  no  removal 
can  be  made  unless  the  President  takes  the 
initiative,  and  hence  the  expression  "removal 
by  the  President." 

As,  by  a  common  and  universally  recognized 
principle  of  construction,  the  most  recent 
statute  is  obligatory  and  controlling  wherever 
it  contravenes  a  previous  statute,  so  a  recent 
commission,  issued  under  an  appointment 
made  by  and  with  the  advice  and  consent  of 
the  Senate,  supersedes  a  previous  appointment 
although  made  in  the  same  manner.  It  is  thus 
apparent  that  there  is,  under  and  by  virtue  of 
the  clause  of  the  Constitution  quoted,  no  power 
ofremoval  vested  either  in  the  President  or  ia 
the  Senate,  or  in  both  of  them  together  as  an 
independent  power;  but  it  is  rather  a  con 
sequence  of  the  power  of  appointment.  And 
as  the  power  of  appointment  is  riot  vested  in 


10 


the  President,  but  only  the  right  to  make  a 
nomination,  which  becomes  an  appointment 
only  when  the  nomination  has  been  confirmed 
by  the  Senate,  the  power  of  removing  a  public 
officer  cannot  be  deemed  an  executive  power 
solely  within  the  meaning  of  this  provision  of 
the  Constitution. 

This  view  of  the  subject  is  in  harmony  with 
the  opinion  expressed  in  the  seventy-sixth 
number  of  the  Federalist.  After  stating  with 
great  force  the  objections  which  exist  to  the 
"exercise  of  the  power  of  appointing  to  office 
by  an  assembly  of  men,"  the  writer  proceeds 
to  say: 

"The  truth  of  the  principles  here  advanced  seems 
to  have  been  felt  by  the  mostintelligentof  those  who 
have  found  fault  with  the  provision  made  in  this  re 
spect  by  the  convention.  They  contend  that  the 
President  ought  solely  to  have  been  authorized  to 
make  the  appointments  under  the  Federal  Govern 
ment.  But  it  is  easy  to  show  that  every  advantage 
to  be  expected  from  such  an  arrangement  would  in 
substance  be  derived  from  the  power  of  nomination, 
which  is  proposed  to  be  conferred  upon  him,  while 
several  disadvantages  which  might  attend  the  abso 
lute  power  of  appointment  in  the  hands  of  that  officer 
would  be  avoided.  In  the  act  of  nominating  his 
judgment  alone  would  be  exercised,  and  as  it  would 
be  his  sole  duty  to  point  out  the  man  who  with  the 
approbation  of  the  Senate  should  nil  an  office,  his 
responsibility  would  be  as  complete  as  if  he  were  to 
make  the  fa'nal  appointment.  There  can,  in  this  view, 
be  no  difference  between  nominating  and  appointing. 
The  same  motives  which  would  influence  a  proper 
discharge  of  his  duty  in  one  case  would  exist  in  the 
other;  and  as  no  man  could  be  appointed  but  upon 
his  previous  nomination,  every  man  who  might  be 
appointed  would  be  in  fact  his  choice. 

"But  his  nomination  may  be  overruled.  This  it 
certainly  may,  yet  it  can  only  be  to  make  place  for 
another  nomination  by  himself.  The  person  ulti 
mately  appointed  must  be  the  object  of  his  prefer 
ence,  though,  perhaps,  not  in  the  highest  degree.  It 
is  also  not  very  probable  that  his  nomination  would 
often  be  overruled.  The  Senate  could  not  be  tempted 
by  the  preference  they  might  feel  to  another  to  reject 
the  one  proposed,  because  they  could  not  assure 
themselves  that  the  person  they  might  wish  would 
be  brought  forward  by  a  second,  or  by  any  subse 
quent  nomination.  They  could  not  even  be  certain 
that  a  future  nomination  would  present  a  candidate 
in  any  degree  more  acceptable  to  them.  And  as 
their  dissent  might  cast  a  kind  of  stigma  upon  the 
individual  rejected,  and  might  have  the  appearance 
of  a  reflection  upon  the  judgment  of  the  Chief  Magis 
trate,  it  is  not  likely  that  their  sanction  would  often 
be  refused,  where  there  were  not  special  and  strong 
reasons  for  the  refusal. 

"To  what  purpose,  then,  require  the  cooperation 
of  the  Senate?  I  answer  that  the  necessity  of  their 
concurrence  would  have  a  powerful,  though  in  gen 
eral,  a  silent  operation.  It  would  be  an  excellent 
check  upon  the  spirit  of  favoritism  in  the  President, 
and  would  tend  greatly  to  preventing  the  appoint 
ment  of  unfit  characters,  from  State  prejudice,  from 
family  connection,  from  personal  attachment,  or 
from  a  view  to  popularity.  And,  in  addition  to  this, 
it  would  be  an  efficacious  source  of  stability  in  the 
Administration. 

"  It  will  readily  be  comprehended  that  a  man  who 
had  himself  the  sole  disposition  of  office  would  be 
governed  much  more  by  his  private  inclinations  and 
interests  than  when  he  was  bound  to  submit  the  pro 
priety  of  his  choice  to  the  dictation  and  determina 
tion  of  a  different  and  independent  body,  and  that 
body  an  entire  branch  of  the  Legislature.  _  The 
1    possibility  of  rejection  would  be  a  strong  motive  to 
£    care  in  proposing.    The  danger  of  his  own  reputa- 
i     tion,  and,  in  the  case  of  an  elective  magistrate,  to 
his  political  existence,  from  betraying  a  spirit  of 
favoritism,  or  an  unbecoming  pursuit  of  popularity, 
to  the  observation  of  a  body  whose  opinion  would 


have  great  weight  in  forming  that  of  the  public, 
could  not  fail  to  operate  as  a  barrier  to  one  and  to 
the  other.  He  would  be  both  ashamed  and  afraid  to 
bring  forward  for  the  most  distinguished  or  lucra 
tive  stations  candidates  who  had  no  other  merit  than 
that  of  coming  from  the  same  State  to  which  he  par 
ticularly  belonged,  or  of  being  in  some  way  or  other 
personally  allied  to  him,  and  possessing  the  neces 
sary  insignificance  and  pliancy  to  render  them  the 
obsequious  instruments  of  his  pleasure." 

When  the  President  has  made  a  nomination 
for  a  particular  office,  and  that  nomination  has 
been  confirmed  by  the  Senate,  the  constitu 
tional  power  of  the  President  during  the  ses 
sion  of  the  Senate  is  exhausted  with  reference 
to  that  officer.  All  that  he  can  do  under  the 
Constitution  is  in  the  same  manner  to  nominate 
a  successor,  who  may  be  either  confirmed  or 
rejected  by  the  Senate.  Considering  the  powers 
of  the  President  exclusively  with  reference  to 
the  removal  and  appointment  of  civil  officers 
during  the  session  of  the  Senate  it  is  clear  that 
he  can  only  act  in  concurrence  with  the  Senate. 
An  office  being  filled,  he  can  only  nominate  a 
successor,  who,  when  confirmed  by  the  Senate, 
is,  by  operation  of  the  Constitution,  appointed 
to  the  office,  and  it  is  the  duty  of  the  President 
to  issue  his  commission  accordingly.  This 
commission  operates  as  a  supersedeas,  and  the 
previous  occupant  is  thereby  removed. 

No  legislation  has  attempted  to  enlarge  or 
diminish  the  constitutional  powers  of  the  Pres 
ident,  and  no  legislation  can  enlarge  or  diminish 
his  constitutional  powers  in  this  respect,  as  I 
shall  hereafter  show.  It  is  here  and  now,  in 
the  presence  of  this  provision  of  the  Constitu 
tion  concerning  the  true  meaning  of  which 
there  neither  is  nor  has  ever  been  any  serious 
doubt  in  the  mind  of  any  lawyer  or  statesman, 
that  we  strip  the  defense  of  the  President  of 
all  the  questions  and  technicalities  which  the 
intellects  of  men,  sharpened  but  not  enlarged 
by  tHe  practice  of  the.law,  have  wrung  from  the 
legislation  of  the  country  covering  three  fourths 
of  a  century. 

On  the  21st  day  of  February  last  Mr.  Stan- 
ton  was  de  facto  and  de  jure  Secretary  for  the 
Department  of  War.  The  President'^  letter 
to  Mr.  Stanton  of  that  date  is  evidence  of 
this  fact : 

EXECUTIVE  MANSION, 
WASHINGTON,  D.  0.,  February  21, 1868. 

SIB:  By  virtue  of  the  power  and  authority  vested 
in  me  as  President  by  the  Constitution  and  laws  of 
the  United  States,  you  are  hereby  removed  from 
office  as  Secretary  for  the  Department  of  War,  and 
your  functions  as  such  will  terminate  upon  receipt 
of  this  communication. 

You  will  transfer  to  Brevet  Major  General  Lorenzo 
Thomas,  Adjutant  General  of  the  Array*  who  has 
this  day  been  authorized  and  empowo^  to  act  as 
Secretary  of  War  ad  interim,  all  records,  books,  pa 
pers,  and  other  public  property  now  in  your  custody 

aiEespecffully,  yours,         AXDTIEW  JOHNSON. 
Hon.  EDWIN  M.  STANTON,  Washington,  D.  C. 

This  letter  is  an  admission,  not  only  that  Mr. 

Stanton  was  Secretary  of  War  on  the  21st  of 

February,  1868,  but  also  that  the  suspension 

(  of  that  officer  of  the  12th  of  August,  A.  D. 

1867,  whether  made  under  the  tenure- of-office 


11 


act  or  not,  was  abrogated  by  the  action  of  the 
Senate  of  the  13th  of  January,  18G8,  and  that 
then  Mr.  Stanton  thereby  was  restored  law 
fully  to  the  office  of  Secretary  for  the  Depart 
ment  of  War. 

On  the  21st  day  of  February  the  Senate  was 
in  session.  There  was  then  but  one  constitu 
tional  way  for  the  removal  of  Mr.  Stauton  ;  a 
nomination  by  the  President  to  the  Senate  of 
a  successor,  and  his  confirmation  by  that  body. 
The  President  attempted  to  remove  Mr.  Stan- 
ton  in  a  way  not  known  to  the  Constitution, 
and  in  violation  thereof,  by  issuing  the  said 
order  for  his  removal.  In  the  first  of  the  arti 
cles  it  is  set  forth  that  this  order  was  issued 
"in  violation  of  the  Constitution  and  of  the 
laws  of  the  United  States,"  and  the  President 
is  consequently  guilty  under  this  article ;  we 
have  proved  a  violation  either  of  the  Constitu 
tion  or  the  laws.  If  we  show  that  he  has  vio 
lated  the  Constitution  of  the  United  States, 
we  show  also  that  he"  has  violated  his  oath  of 
office,  which  pledged  him  to  support  the  Con 
stitution.  Thus  is  the  guilt  of  the  President, 
under  the  Constitution  and  upon  admitted 
facts,  established  beyond  a  reasonable  doubt. 
This  view  is  sufficient  to  justify  and  require  at 
your  hands  a  verdict  of  guilty  under  the  first 
article,  and  this  without  any  reference  to  the 
legislation  of  the  country,  and  without  refer 
ence  to  the  constitutionality  of  the  tenure-of- 
office  act  or  to  the  question  whether  the  Sec 
retary  of  War  is  included  within  its  provisions 
or  not.  But  1  intend  in  the  course  of  my  ar 
gument  to  deal  with  all  these  questions  of  law, 
and  to  apply  the  law  as  it  shall  appear  to  the 
facts  proved  or  admitted.  To  be  sure,  in  my 
judgment,  the  case  presented  by  the  House  of 
Representatives  in  the  name  of  all  the  people 
of  the  United  States  might  safely  be  rested 
here;  but  the  cause  of  justice,  the  cause  of 
the  country,  requires  us  to  expose  and  demon 
strate  the  guilt  of  the  President  in  all  the  par 
ticulars  set  forth  in  the  articles  of  impeach 
ment.  We  have  no  alternative  but  to  proceed. 
In  this  connection  1  refer  to  a  view  presented 
by  the  counsel  for  the  President  in  his  open 
ing  argument.  He  insists  or  suggests  that 
inasmuch  as  the  letter  to  Stanton  of  the  21st 
of  February  did  not,  in  fact,  accomplish  a 
removal  of  the  Secretary,  that  therefore  no 
offense  was  committed.  The  technicalities  of 
the  law  have  fallen  into  disrepute  among  the 
people,  and  sometimes  even  in  the  courts. 
.The  technicalities  proper  of  the  law  are  the 
rules  developed  by  human  experience,  and 
justly  denominated,  as  is  the  law  itself,  the 
perfection  of  human  reason.  These  rules, 
wise  though  subtle,  aid  in  the  administration 
of  justice  in  all  tribunals  where  the  laws  are 
judicially  administered.  But  it  often  happens 
that  attorneys  seek  to  confuse  the  minds  of 
men  and  thwart  the  administration  of  justice 
by  the  suggestion  of  nice  distinctions  which 
have  no  foundation  in  reason  and  find  no  sup 
port  in  general  principles  of  right. 


The  President  cannot  assume  to  exercise  a 

Eower  as  a  power  belonging  to  the  office  he 
olds,  there  being  no  warrant  in  law  for  such 
exercise,  and  then  plead  that  he  is  not  guilty 
because  the  act  undertaken  was  not  fully  ac 
complished.  The  President  is  as  guilty  in  con 
templation  of  law  as  he  would  have  been  if 
Mr.  Stanton  had  submitted  to  his  demand  and 
retired  from  the  office  of  Secretary  for  the  De 
partment  of  War.  Nothing  more  possible  re 
mained  for  the  President  except  a  resort  to  force, 
and  what  he  did  and  what  he  contemplated 
doing  to  obtain  possession  of  the  office  by  force 
will  be  considered  hereafter. 

If  these  views  are  correct,  the  President  is 
wholly  without  power,  under  and  by  virtue  of 
the  Constitution,  to  suspend  a  public  officer. 
And  most  assuredly  nothing  is  found  in  the 
Constitution  to  sustain  the  arrogant  claim 
which  he  now  makes,  that  he  may  during  a 
session  of  the  Senate  suspend  a  public  officer 
indefinitely  and  make  an  appointment  to  the 
vacancy  thus  created  without  asking  the  advice 
and  consent  of  the  Senate  either  upon  the  sus 
pension  or  the  appointment. 

I  pass  now  to  the  consideration  of  the  third 
clause  of  the  second  section  of  the  second  arti 
cle  of  the  Constitution: 

"  The  President  shall  have  power  to  fill  up  all 
vacancies  that  may  happen  during  the  recess  oi'  the 
Senate,  by  granting  commissions  which  shall  expire 
at  the  end  of  their  next  session." 

The  phrase,  "may  happen,"  construed  ac 
cording  to  the  proper  and  well-understood 
meaning  of  the  words  when  the  Constitution 
was  framed,  referred  to  those  vacancies  which 
might  occur  independently  of  the  will  of  the 
Government — vacancies  arising  from  death, 
from  resignation,  from  circumstances  not  pro 
duced  by  the  act  of  the  appointing  power. 
The  words  "happen"  and  "happened"  are 
of  frequent  use  in  the  Bible,  u  that  well  of  pure 
English  undefiled,"  and  always  in  the  sense  of 
accident,  fortuity,  chance,  without  previous 
expectation,  as  to  befall,  to  light,  to  fall,  or  to 
come  unexpectedly.  This  clause  of  the  Con 
stitution  contains  a  grant  of  power  to  the  Pres 
ident,  arid  under  and  by  virtue  of  it  he  may 
take  and  exercise  the  power  granted,  but 
nothing  by  construction  or  by  implication.  He 
then,  by  virtue  of  his  office,  may,  during  the 
recess  of  the  Senate,  grant  commissions  which 
shall  expire  at  the  end  of  the  next  session,  and 
thus  fill  up  any  vacancies  that  may  happen ; 
that  is,  that  may  come  by  chance,  by  accident, 
without  any  agency  on  his  part. 

If,  then,  ii  be  necessary  and  proper,  as  un 
doubtedly  it  is  necessary  and  proper,  that  pro 
vision  should  be  made  for  the  suspension  or 
temporary  removal  of  officers  who,  in  the  recess 
of  the  Senate,  have  proved  to  be  incapable  or 
dishonest,  or  who  in  the  judgment  of  the  Pres 
ident  are  disqualified  for  the  further  discharge 
of  the  duties  of  their  offices,  it  is  clearly  a 
legislative  Bright  and  duty,  under  the  clause  of 
the  Constitution  which  authorizes  Congresft 


12 


11  to  make  all  laws  which  shall  be  necessary  and 
proper  to  carry  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  in  the 
Government  of  the  United  States,  or  in  any 
department  or  officer  thereof,"  to  provide  for 
the  contingency.  It  is  no  answer  to  this  view 
of  the  case  to  say  that  until  the  2d  of  March, 
1867,  Congress  neglected  to  legislate  upon  this 
subject,  and  that  during  the  long  period  of 
such  neglect,  by  the  advice  of  Attorneys  Gen 
eral,  the  practice  was  introduced  and  con 
tinued,  by  which  the  President,  during  the  re 
cess  of  the  Senate,  removed  from  office  per 
sons  who  had  been  nominated  by  the  President 
and  confirmed  by  the  Senate.  This  practice 
having  originated  in  the  neglect  of  Congress  to 
legislate  upon  a  subject  clearly  within  its  juris 
diction,  and  only  tolerated  by  Congress,  has, 
at  most,  the  force  of  a  practice  or  usage  which 
can  at  any  time  be  annulled  or  controlled  by 
statute. 

This  view  is  also  sustained  by  the  reasoning 
of  Hamilton,  in  the  sixty-seventh  number  of 
the  Federalist,  in  which  he  says  : 

"The  last  of  these  two  clauses,  it  is  equally  clear, 
cannot  be  understood  to  comprehend  the  power  of 
filling  vacancies  in  the  Senate,  for  the  following 
reasons :  First,  the  relation  in  which  that  clause 
stands  to  the  other,  which  declares  the  general  mode 
of  appointing  officers  of  the  United  States,  denotes 
it  to  be  nothing  more  than  a  supplement  to  the  other, 
for  the  purpose  9f  establishing  an  auxiliary  method 
of  appointment  in  cases  to  which  the  general  method 
was  inadequate.  The  ordinary  power  of  appointment 
is  confided  to  the  President  and  Senate  jointly,  and 
can  therefore  only  be  exercised  during  the  session  of 
the  Senate;  but  as  it  would  have  been  improper  to 
oblige  this  body  to  be  continually  in  session  for  the 
appointment  of  officers,  and  as  vacancies  might  hap 
pen  in  their  recess,  which  it  might  be  necessary  i'or 
the  public  service  to  fill  without  delay,  the  succeed 
ing  clause  is  evidently  intended  to  authorize  the 
President,  singly,  to  make  temporary  appointments 
'during  the  recess  of  the  Senate,  by  granting  com 
missions  which  should  expire  at  the  end  of  their 
next  session.'" 

The  arguments  which  I  have  thus  offered, 
and  the  authorities  quoted,  show  that  the  Pres 
ident  had  not  the  power  during  the  session  of 
the  Senate  to  remove  either  the  Secretary  of 
War  or  any  civil  officer  from  office  by  virtue 
of  the  Constitution.  The  power  of  removal 
during  the  recess  of  the  Senate  was  recognized 
by  the  act  of  1789,  and  tolerated  by  the  coun 
try  upon  the  opinions  of  Attorneys  General  till 
1867.  The  President  claims,  however,  and  as 
an  incident  of  the  power  of  removal,  the  power 
to  suspend  from  office  indefinitely  any  officer 
of  the  Government ;  but  inasmuch  as  his  claim 
to  the  power  of  removal  is  not  supported  by 
the  Constitution,  he  cannot  sustain  any  other 
claim  as  an  incident  of  that  power.  Butif  the 
power  to  remove  were  admitted,  it  would  by 
no  means  follow  that  the  President  has  the 
power  to  suspend  indefinitely.  The  power  to 
suspend  indefinitely  is  a  different  power  from 
that  of  removal,  and  it  is  in  no  proper  sense 
necessarily  an  incident.  It  might  be  very  well 
conceived  that  if  the  framers  of  the  Constitu 
tion  had  thought  fit  to  confer  upon  the  Presi 
dent  the  power  to  remove  a  public  officer  ab 


solutely^  his  removal  to  be  followed  by  the 
nomination  of  a  successor  to  the  Senate,  they 
might  yet  have  denied  to  the  President  the 
power  to  suspend  public  officers  indefinitely 
and  to  supply  their  places  by  his  appointees 
without  the  advice  and  consent  of  the  Senate. 
But,  inasmuch  as  the  power  to  suspend  inde 
finitely  is  not  a  power  claimed  as  a  specific  grant 
under  the  Constitution,  and  as  the  claim  by  the 
President  of  the  power  of  removal  during  a 
session  of  the  Senate  is  not  sustained  by  the 
text  of  the  Constitution  or  by  any  good  author 
ity  under  it,  it  is  not  important  to  consider 
whether,  if  the  power  of  removal  were  admitted 
to  exist,  the  power  to  suspend  indefinitely  could 
be  considered  as  an  incident.  It  is  sufficient 
to  say  that  neither  power,  in  the  sense  claimed 
by  the  President,  exists  under  the  Constitution 
or  by  any  provision  of  law. 

I  respectfully  submit,  Senators,  that  there 
can  be  no  reasonable  doubt  of  the  soundness 
of  the  view  I  have  presented,  both  of  the  lan 
guage  and  meaning  of  the  Constitution  in  re 
gard  to  appointments  to  office.  But.  if  there 
were  any  doubt,  it  is  competent  and  proper 
to  consider  the  effects  of  the  claim,  if  recog 
nized,  as  set  up  by  the  President.  And  in  a 
matter  of  doubt  as  to  the  construction  of  the 
Constitution  it  would  be  conclusive  of  its  true 
interpretation  that  the  claim  asserted  by  the 
President  is  fraught  with  evils  of  the  gravest 
character.  He  claims  the  right,  as  well  when 
the  Senate  is  in  session  as  when  it  is  not  in 
session,  to  remove  absolutely,  or  to  suspend 
for  an  indefinite  period  of  time,  according  to 
his  own  discretion,  every  officer  of  the  Army, 
of  the  Navy,  and  of  the  civil  service,  and  to 
supply  their  places  with  creatures  and  partisans 
of  his  own.  To  be  sure,  he  has  not  asserted, 
in  direct  form,  his  right  to  remove  and  suspend 
indefinitely  officers  of  the  Army  and  Navy  ;  but 
when  you  consider  that  the  Constitution  makes 
no  distinction  in  the  tenure  of  office  between 
military,  naval,  and  civil  officers  ;  that  ail  are 
nominated  originally  by  the  President  and  re 
ceive  their  appointments  upon  the  confirmation 
of  the  Senate,  and  hold  their  offices  under  the 
Constitution  by  no  other  title  than  that  which 
secures  to  a  Cabinet  officer  or  to  a  revenue  col 
lector  the  office  to  which  he  has  been  appointed, 
there  can  be  no  misunderstanding  as  to  the 
nature,  extent,  and  dangerous  character  of  the 
claim  which  the  President  makes.  The  state 
ment  of  this  arrogant  and  dangerous  assump 
tion  is  a  sufficient  ans-wer  to  any  doubt  which 
might  exist  in  the  mind  of  any  patriots  to 
the  true  intent  and  meaning  of  tjie^Tonstitu- 
tion.  It  cannot  be  conceived  tb«^the  men  who 
framed  that  instrument,  wkef  were  devoted  to 
liberty,  who  had  themselves  suffered  by  the 
exercise  of  illegal  and  irresponsible  power, 
would  have  vested  in  the  President  of  the 
United  States  an  authority,  to  be  exercised 
without  the  restraint  or  control  of  any  other 
branch  or  .department  of  the  Government, 
which  would  enable  him  to  corrupt  the  civil, 


13 


military,  and  naval  officers  of  the  country  by 
rendering  them  absolutely  dependent  for  their 
positions  and  emoluments  upon  his  will. 

At  the  present  time  there  are  forty-one 
thousand  officers,  whose  aggregate  emoluments 
exceed  $21,000,000  per  annum.  To  all  these 
the  President's  claim  applies.  These  facts 
express  the  practical  magnitude  of  the  subject. 
Moreover,  this  claim  was  never  asserted  by 
any  President  or  by  any  public  man  from  the 
beginning  of  the  Government  until  the  present 
time.  It  is  in  violation  also  of  the  act  of  July 
13,  18G6,  which  denies  to  the  Executive  the 
power  to  remove  officers  of  the  Army  and  the 
Navy,  except  upon  sentence  of  a  court-martial. 
The  history  of  the  career  of  Andrew  Johnson 
shows  that  he  has  been  driven  to  the  assertion 
of  this  claim  by  circumstances  and  events  con 
nected  with  his  criminal  design  to  break  down 
the  power  of  Congress, 'to  subvert  the  institu 
tions  of  the  country,  and  thereby  to  restore 
the  Union  in  the  interest  of  those  who  partici 
pated  in  the  rebellion.  Having  entered  upon 
this  career  of  crime,  he  soon  found  it  essential 
to  the  accomplishment  of  his  purposes  to  secure 
the  support  of  the  immense  retinue  of  public 
officers  of  every  grade  and  description  in  the 
country.  This  he  could  not  do  without  making 
them  entirely  dependent  upon  his  will;  and  in 
order  that  they  might  realize  their  dependence, 
and  thus  be  made  subservient  to  his  purposes, 
he  determined  to  assert  an  authority  over  them 
unauthorized  by  the  Constitution,  and  there 
fore  not  attempted  by  any  Chief  Magistrate. 
His  conversation  with  Mr.  Wood  in  the  autumn 
of  1866  fully  discloses  this  purpose. 

Previous  to  the  passage  of  the  tenure- of- 
office  act  he  had  removed  hundreds  of  faithful 
and  patriotic  public  officers,  to  the  great  detri 
ment  of  the  public  service,  and  followed  by  an 
immense  loss  of  the  public  revenues.  At  the 
time  of  the  passage  of  the  act  he  was  so  far 
involved  in  his  mad  schemes — schemes  of  am 
bition  and  revenge — that  it  was,  in  his  view, 
impossible  for  him  to  retrace  his  steps.  He 
consequently  determined,  by  various  artifices 
and  plans,  to  undermine  that  law  and  secure  to 
himself,  in  defiance  of  the  will  of  Congress  and 
of  the  country,  entire  control  of  the  officers  in 
the  civil  service  and  in  the  Army  and  the  Navy. 
He  thus  becamegradually  involved  in  an  unlaw 
ful  undertaking  from  which  he  could  not  re 
treat.  In  the  presence  of  the  proceedings 
against  him  by  the  House  of  Representatives 
he  had  no  alternative  but  to  assert  that  under 
the  Constitution  power  was  vested  in  the  Pres 
ident  exclusively,  without  the  advice  and  con 
sent  of  the  Senate,  to  remove  from  office  every 
person  in  the  service  of  the  country.  This 
policy,  as  yet  acted  upon  in  part,  and  devel 
oped  chiefly  in  the  civil  service,  has  already  pro 
duced  evils  which  threaten  the  overthrow  of 
the  Government.  When  he  removed  faithful 
public  officers,  and  appointed  others  whose  only 
claim  to  consideration  was  their  unreasoning 
devotion  to  his  interest  and  unhesitating  obe 


dience  to  his  will,  they  compensated  themselves 
for  this  devotion  and  this  obedience  by  frauds 
upon  the  revenues  and  by  crimes  against  the 
laws  of  the  land.  Hence  it  has  happened  that 
in  the  internal  revenue  service  alone — chiefly 
through  the  corruption  of  men  whom  he  has 
thus  appointed — the  losses  have  amounted  to 
not  less  than  twenty-five,  and  probably  to  more 
than  fifty  million  dollars  during  the  last  two 
years. 

In  the  presence  of  these  evils,  which  were 
then  only  partially  realized,  the  Congress  .of 
the  United  States  passed  the  tenure-of-office 
act  as  a  barrier  to  their  further  progress. 
This  act  thus  far  has  proved  ineffectual  as  a 
complete  remedy ;  and  now  the  President,  by 
his  answer  to  the  articles  of  impeachment, 
asserts  his  right  to  violate  it  altogether,  and 
by  an  interpretation  of  the  Constitution  which 
is  alike  hostile  to  its  letter  and  to  the  peace 
and  welfare  of  the  country  he  assumes  to 
himself  absolute  and  unqualified  power  over 
all  the  offices  and  officers  of  the  country.  The 
removal  of  Mr.  Stanton,  contrary  to  the  Con 
stitution  and  the  laws,  is  the  particular  crime 
of  the  President  for  which  we  now  demand 
his  conviction.  The  extent,  the  evil  charac 
ter,  and  the  dangerous  nature  of  the  claims  by 
which  he  seeks  to  justify  his  conduct  are  con 
trolling  considerations.  By  his  conviction  you 
purify  the  Government,  and  restore  it  to  its  ori 
ginal  character.  By  his  acquittal  you  surren 
der  the  Government  into  the  hands  of  an  usurp 
ing. and  unscrupulous  man,  who  will  use  all  the 
vast  power  he  now  claims  for  the  corruption 
of  every  branch  of  the  public  service  and  the 
final  overthrow  of  the  public  liberties. 

Nor  is  it  any  excuse  for  the  President  that 
he  has,  as  stated  in  his  answer,  taken  the  ad 
vice  of  his  Cabinet  officers  in  support  of  his 
claim.  In  the  first  place,  he  had  no  right 
under  the  Constitution  to  the  advice  of  the 
head  of  a  Department  except  upon  subjects 
relating  to  the  duties  of  his  Department.  If 
the  President  has  chosen  to  seek  the  advice  of 
his  Cabinet  upon  other  matters,  and  they  have 
seen  fit  to  give  it  upon  subjects  not  relating 
to  their  respective  Departments,  it  is  advice 
which  he  had  no  constitutional  authority  to 
ask,  advice  which  they  were  not  bound  to 
give,  and  that  advice  is  to  him,  and  for  all 
the  purposes  of  this  investigation  and  trial,  as 
the  advice  of  private  persons  merely.  But  of 
what  value  can  be  the  advice  of  men  who,  in 
the  first  instance,  admit  that  they  hold  their 
offices  by  the  will  of  the  person  who  seeks 
their  advice,  and  who  understand  most  clearly 
that  if  the  advice  they  give  should  be  contrary 
to  the  wishes  of  their  master  they  would  be  at 
once,  and  in  conformity  with  their  own  theory 
of  the  rights  of  the  President,  deprived  of  the 
offices  which  they  hold?  Having  first  made 
these  men  entirely  dependent  upon  his  will,  he 
then  solicits  their  advice  as  to  the  application' 
of  the  principle  by  which  they  admit  that  they 
hold  their  places  to  all  the  other  officers  of  the 


14 


Government.  Could  it  have  been  expected 
that  they,  under  such  circumstances,  would 
have  given  advice  in  any  particular  disagree 
able  to  the  will  of  him  who  sought  it? 

It  was  the  advice  of  serfs  to  their  lord,  of 
servants  to  their  master,  of  slaves  to  their 
owner. 

The  Cabinet  respond  to  Mr.  Johnson  as  old 
Polonius  to  Hamlet.  Hamlet  says : 

"Do  you  see  yonder  cloud,  that's  almost  in  shape 
of  a,  camel? 

"Polonius.  By  the  mass,  and  'tis  like  a  camel, 
iiwleed. 

"Hamlet.  Methinks  it  is  like  a  weasel. 

"Polonius.  It  is  backed  like  a  weasel. 

"Hamlet.  Or,  like  a  whale? 

"Polonius.  Very  like  a  whale." 

The  gentlemen  of  the  Cabinet  understood  the 
position  that  they  occupied.  The  President, 
in  his  message  to  the  Senate  upon  the  suspen 
sion  of  Mr.  Stanton,  in  which  he  says  that  he 
tookthe  advice  of  his  Cabinet  in  reference  to  his 
action  upon  the  bill  regulating  the  tenure  of 
certain  civil  offices,  speaks  thus : 

"  The  bill  had  then  not  become  a  law.  The  limita 
tion  upon  the  power  of  removal  was  notyet  imposed, 
and  there  was  yet  time  to  make  any  changes.  If  any 
one  of  these  gentlemen  had  then  said  to  me  that  he 
would  avail  himself  of  the  provisions  of  that  bill  in 
case  it  became  a  law,  I  should  not  have  hesitated  a 
moment  as  to  his  removal." 

Having  indulged  his  Cabinet  in  such  freedom 
of  opinion  when  he  consulted  them  in  reference 
to  the  constitutionality  of  the  bill,  and  having 
covered  himself  and  them  with  public  odium  by 
its  announcement,  he  now  vaunts  their  opin 
ions,  extorted  by  power  and  given  in  subserv 
iency,  that  the  law  itself  may  be  violated  with 
impunity.  This,  says  the  President,  is  the  exer 
cise  of  my  constitutional  right  to  the  opinion 
of  my  Cabinet.  I,  says  the  President,  am  re 
sponsible  for  my  Cabinet.  Yes,  the  President 
is  responsible  for  the  opinions  and  conduct 
of  men  who  give  such  advice  as  is  demanded, 
and  give  it  in  fear  and  trembling  lest  they  be 
at  once  deprived  of  their  places.  This  is  the 
President's  idea  of  a  Cabinet,  but  it  is  an 
idea  not  in  harmony  with  the  theory  of  the  Con 
stitution. 

The  President  is  a  man  of  strong  will,  of 
violent  passions,  of  unlimited  ambition,  with 
capacity  to  employ  and  use  timid  men,  adhe 
sive  men,  subservient  men,  and  corrupt  men, 
as  the  instruments  of  his  designs.     It  is  the 
truth  of  history  that  he  ha^  injured  every  per 
son  with  whom  he  has  had  confidential  rela 
tions,  and   many  have  escaped  ruin  only  by 
withdrawing  from  his  society  altogether.     He 
has  o;         '      »f  I'.fj:  he  attempts  fco  u^o  every 
man  of  power,  capacity,  or  influence  within 
his  reach.     Succeeding  in  his  attempts,  they 
are  in  time,  and  usually  in  a  short  time,  utterly 
ruined.     If  the  considerate  flee  from  him,  if 
the  brave  and  patriotic  resist  his  schemes  or 
expose  his  plans,  he  attacks  them  with  all  the 
enginery  and  patronage  of  his  office  and  pur 
sues  them  with  all  the  violence  of  his  personal 
hatred.     He  attacks  to  destroy  all  who  will 


not  become  his  instruments,  and  all  who  be 
come  his  instruments  are  destroyed  in  the  use. 
He  spares  no  one.  Already  this  purpose  of 
his  life  is  illustrated  in  the  treatment  of  a  gen 
tleman  who  was  of  counsel  for  the  respondent, 
but  who  has  never  appeared  in  his  behalf. 

'•The  thanks  of  the  country  are  due  to  those 
distinguished  soldiers  who,  tempted  by  the 
President  by  offers  of  kingdoms  which  were 
not  his  to  give,  refused  to  fall  down  and  wor 
ship  the  tempter.  And  the  thanks  of  the 
country  are  not  less  due  to  General  Emory, 
who,  when  brought  into  the  presence  of  the 
President  by  a  request  which  he  could  not  dis 
obey,  at  once  sought  to  protect  himself  against 
his  machinations  by  presenting  to  him  the  law 
upon  the  subject  of  military  orders. 

The  experience  and  the  fate  of  Mr.  John 
son's  eminent  adherents  are  lessons  of  warn 
ing  to  the  country  and  to  mankind ;  and  the 
more  eminent  and  distinguished  of  his  adhe 
rents  have  furnished  the  most  melancholy  les 
sons  for  this  and  for  succeeding  generations. 

It  is  not  that  men  are  ruined  when  they 
abandon  a  party;  but  in  periods  of  national 
trial  and  peril  the  people  will  not  tolerate  those 
who,  in  any  degree  or  under  any  circumstances, 
falter  in  their  devotion  to  the  rights  and  in 
terests  of  the  Republic.  In  the  public  judg 
ment,  which  is  seldom  erroneous  in  regard  to 
public  duty,  devotion  to  the  country  and  ad 
herence  to  Mr.  Johnson  are  and  have  been 
wholly  inconsistent. 

Carpenter's  historical  painting  of  Emancipa 
tion  is  a  fit  representation  of  an  event  the  most 
illustrious  of  any  in  the  annals  of  America 
since  the  adoption  of  the  Constitution.  Indeed, 
it  is  second  to  the  ratification  of  the  Constitu 
tion  only  in  the  fact  that  that  instrument,  .as  a 
means  of  organizing  and  preserving  the  nation, 
rendered  emancipation  possible.  The  princi 
pal  figure  of  the  scene  is  the  immortal  Lincoln, 
whose  great  virtues  endear  his  name  and  mem 
ory  to  all  mankind,  and  whose  untimely  and 
violent  death,  then  the  saddest  event  in  our 
national  experience,  but  now  not  deemed  so 
great  .a  calamity  to  the  people  who  loved  him 
|  and  mourned  for  him  as  no  public  man  was 
ever  before  loved  or  lamented,  as  is  the  shame, 
humiliation,  disgrace,  and  suffering  caused  by 
the  misconduct  and  crimes  of  his  successor. 
It  was  natural  and  necessary  that  the  artist 
should  arrange  the  personages  of  the  group  on 
the  right  hand  and  on  the  left  of  the  principal 
figure.  Whether  the  particular  assignment  was 
by  chance,  by  the  taste  of  the  artist,  or  .fey  the 
influence  of  a  mysterious  Provide^x^e  which 
works  through  human  agency,^re'  know  not. 
But  on  the  right  of  Lincoln  are  two  statesmen 
and  patriots  who,  in  all  the  trials  and  vicissi 
tudes  of  these  eventful  years,  have  remained 
steadfast  to  liberty,  to  justice,  to  the  principles 
of  constitutional  government.  Senators  and 
Mr.  Chief  Justice,  in  this  presence  I  venture 
not  to  pronounce  their  names. 
On  the  left  of  Lincoln  are  five  figures  respre- 


15 


senting  the  other  members  of  his  Cabinet. 
One  of'  these  is  no  longer  among  the  living ;  he 
died  before  the  evil  days  came,  and  we  may 
indulge  the  hope  that  he  would  have  escaped 
the  fate  of  his  associates.  Of  the  other  four 
three  have  been  active  in  counseling  and  sup 
porting  the  President  in  his  attempts  to  subvert 
the  Government.  They  are  already  ruined 
men.  Upon  the  canvas  they  are  elevated  to 
the  summit  of  virtuous  ambition.  Yielding  to 
the  seductions  of  power  they  have  fallen.  Their 
example  and  fate  may  warn  us,  but  their  ad 
vice  and  counsel,  whether  given  to  this  tribunal 
or  to  him  who  is  on  trial  before  this  tribunal, 
cannot  be  accepted  as  the  judgment  of  wise  or 
of  patriotic  men. 

On  motion  of  Mr.  SPRAGUE,  at  two  o'clock 
and  fifteen  minutes  p.  m.,  the  Senate  took  a 
recess  for  fifteen  minutes. 

At  the  expiration  of  the  recess  the  Chief 
Justice  resumed  the  chair  and  called  the  Sen 
ate  to  order. 

Mr.  SHERMAN.  I  move  that  the  roll  of 
the  Senators  be  called,  so  that  we  may  get  their 
attendance. 

Mr.  CONNESS.     That  is  never  done. 

Mr.  SHERMAN.  It  can  be  done.  A  mo 
tion  to  adjourn  will  have  the  same  effect  prac 
tically. 

Mr.  CONNESS.  The  Senator  may  move  an 
adjournment  and  get  a  call  in  that  way. 

Mr.  SHERMAN.  I  move  a  call  of  the 
Senators. 

The  CHIEF  JUSTICE.  The  Senator  from 
Ohio  moves  that  the  roll  of  the  Senate  be 
called. 

Mr.  CONNESS.     It  never  has  been  done. 

Mr.  SUMNER.  The  rule  provides  for  a 
call  of  the  Senate. 

Mr.  CONNESS.  I  should  like  to  hear  the 
rule. 

Mr.  SUMNER.     It  is  Rule  16. 

The  CHIEF  JUSTICE.  The  Secretary  will 
read  the  sixteenth  rule  of  the  Senate. 

The  Chief  Clerk  read  as  follows: 

"  16.  When  the  yeas  and  nays  shall  be  called  for  by 
one  fifth  of  the  Senators  present,  each  Senatorcalled 
upon  shall,  unless  for  special  reasons  he  be  excused 
by  the  Senate,  declare  openly  and  without  debate  his 
assent  or  dissent  to  the  question.  In  taking  the  yeas 
and  nays,  and  upon  a  call  of  the  Senate,  the  names 
of  the  Senators  shall  be  called  alphabetically." 

The  CHIEF  JUSTICE.  If  there  be  no  ob 
jection  the  Secretary  will  call  the  roll  to  ascer 
tain  who  are  present. 

Mr.  DRAKE.     I  object,  sir. 

Mr.  SHERMAN.  1  move  that  there  be  a 
call  of  the  Senate. 

The  motion  was  agreed  to  ;  and  the  roll 
being  called,  forty-four  Senators  answered  to 
their  names. 

The  CHIEF  JUSTICE.  There  are  forty- 
four  Senators  answering  to  their  names.  The 
honorable  Manager  will  proceed. 

Mr.  Manager  BOUTWELL.  Mr.  President, 
Senators,  leaving  the  discussion  of  the  provis 
ions  of  the  Constitution,  I  am  now  prepared  to 


ask  your  attention  to  the  character  and  history 
of  the  act  of  1789,  on  which  stress  has  been  laid 
by  the  President  in  his  answer,  and  by  the  learned 
counsel  who  opened  the  case  for  the  respond 
ent.  The  discussion  in  the  House  of  Repre 
sentatives  in  1789  related  to  the  bill  establish 
ing  a  Department  of  Foreign  Affairs.  The  first 
section  of  that  bill,  as  it  originally  passed  the 
House  of  Representatives,  after  recapitulating 
the  title  of  the  officer  who  was  to  take  charge 
of  the  Department,  and  setting  forth  his  duties, 
contained  these  words  in  reference  to  the  Sec 
retary  of  the  Department:  "To be  removable 
from  office  by  the  President  of  the  United 
States."  The  House,  in  Committee  of  the 
Whole,  discussed  this  provision  during  several 
days,  and  all  the  leading  members  of  the  body 
appear  to  have  taken  part  in  the  debate.  As 
is  well  known,  there  was  a  difference  of  opin 
ion  at  the  time  as  to  the  meaning  of  the  Con 
stitution.  Some  contended  that  the  power  of 
removing  civil  officers  was  vested  in  the  Presi 
dent  absolutely,  to  be  exercised  by  him,  with 
out  consultation  with  the  Senate,  and  this  as 
well  when  the  Senate  was  in  session  as  during 
vacations.  Others  maintained  that  the  initia 
tive  in  the  removal  of  a  public  officer  must  be 
taken  by  the  President,  but  that  there  could  be 
no  actual  removal  except  by  the  advice  and 
consent  of  the  Senate,  and  that  this  rule  was 
applicable  to  the  powers  of  the  President  as 
well  during  the  vacation  as  during  the  session 
of  the  Senate.  Others  maintained  that  during 
the  session  of  the  Senate,  while  the  initiative 
was  in  the  President,  the  actual  removal  of  a 
civil  officer  could  be  effected  only  upon  the 
advice  and  consent  of  the  Senate,  but  that  dur 
ing  the  vacations  the  President  might  remove 
such  officers  and  fill  their  places  temporarily, 
under  commissions,  to  expire  at  the  end  of  the 
next  session  of  the  Senate.  Mr.  Madison 
maintained  the  first  of  these  propositions,  and 
he  may  be  said  to  be  the  only  person  of  histor 
ical  reputation  at  the  present  day  who  expressed 
corresponding  opinions,  although  undoubted 
ly  his  views  were  sustained  by  a  consider 
able  number  of  members.  It  is  evident  from 
an  examination  of  the  debate  that  Mr.  Madi 
son's  views  were  gradually  and  finally  success 
fully  undermined  by  the  discussion  on  that 
occasion. 

As  i^s  well  known,  Roger  Sherman  was  then 
one  of  the  most  eminent  members  of  that  body. 
He  was  a  signer  of  the  Declaration  of  Inde 
pendence,  a  member  of  the  Convention  which 
framed  the  Constitution  of  the  United  States, 
and  a  member  of  tne  House  of  Representa 
tives  of  the  First  Congress.  He  was  undoubt 
edly  one  of  the  most  illustrious  men  of  the  con 
stitutional  period  of  American  history  ;  and  in 
each  succeeding  generation  there  have  been 
eminent  persons  of  his  blood  and  name  ;  but 
at  no  period  has  his  family  been  more  distin 
guished  than  at  the  present  time.  Mr.  Sher 
man  took  a  leading  part  in  the  discussion,  and 
there  is  no  doubt  that  the  views  which  he  enter- 


16 


tained  and  expressed  had  a  large  influence  in 
producing  the  result  which  was  finally  reached. 
The  report  of  the  debate  is  found  in  the  first 
volume  of  the  Annals  of  Congress ;  and  I 
quote  from  the  remarks  made  by  Mr.  Sherman, 
preserved  on  pages  510  and  511  of  that  volume : 

"Mr.  SHERMAN.  I  consider  this  a  very  important 
subject  in  every  point  of  view,  and  therefore  worthy 
of  full  discussion.  In  my  mind  it  involves  three 
questions.  First.  Whether  the  President  has,  by  the 
Constitution,  the  right  to  remove  an  officer  appointed 
by  and  with  the  advice  and  consent  of  the  Senate. 
No  gentleman  contends  but  that  the  advice  and  con 
sent  of  the  Senate  are  necessary  to  make  the  appoint 
ment  in  all  cases,  unless  in  inferior  offices  where  the 
contrary  is  established  by  law;  but  then  they  allege 
that,  although  the  consent  of  the  Senate  be  neces 
sary  to  the  appointment,  the  President  alone,  by.  the 
nature  of  his  office,  has  the  P9\ver  of  removal.  Now, 
it  appears  to  me  that  this  opinion  is  ill-founded,  be 
cause  this  provision  was  intended  for  some  useful 
purpose,  and  by  that  construction  would  answer 
none  at  all.  I  think  the  concurrence  of  the  Senate 
as  necessary  to  appoint  an  officer  as  the  nomination 
of  the  President;  they  are  constituted  as  mutual 
checks,  each  having  a  negative  upon  the  other. 

"I  consider  it  as  an  established  principle  that  the 
power  which  appoints  can  also  remove,  unless  there 
are  express  exceptions  made.  Now,  the  power  which 
appoints  the  judges  cannot  displace  them,  because 
there  is  a  constitutional  restriction  in  their  favor; 
otherwise  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate,  being  the  power  which  ap 
pointed  them,  would  be  sufficient  to  remove  them. 
This  is  the  construction  in  England,  where  the  king 
has  the  power  of  appointing  judges;  it  was  declared 
to  be  during  pleasure,  and  they  might  be  removed 
when  the  monarch  thought  proper.  It  is  a  general 
principle  in  law  as  well  as  reason  that  there  shall 
be  the  same  authority  to  remove  as  to  establish.  It 
is'  so  in  legislation,  where  the  several  branches  whose 
concurrence  is  necessary  to  pass  a  law  must  concur 
in  repealing  it.  Just  so  I  take  it  to  be  in  cases  of 
appointment,  and  the  President  alone  may  remove 
when  he  alone  appoints,  as  in  the  case  of  inferior 
offices  to  be  established  by  law."  ***** 

"As  the  office  is  the  mere  creature  of  the  Legisla 
ture  we  may  form  it  under  such  regulations  as  we 
please,  with  such  powers  and  duration  as  we  think 
good  policy  requires.  We  may  say  he  shall  hold  his 
office  during  good  behavior,  or  that  he  shall  be  an 
nually  elected.  We  may  say  he  shall  be  displaced 
for  neglect  of  duty,  and  point  out  how  he  shall  be 
convicted  of  it  without  calling  upon  the  President 
or  Senate. 

"The  third  question  is,  if  the  Legislature  has  the 
power  to  authorize  the  President  alone  to  remove 
this  officer  whether  it  is  expedient  to  invest  him  with 
it?  I  do  not  believe  it  absolutely  necessary  tbat  he 
should  have  such  power,  because  the  power  of  sus 
pending  would  answerall  the  purposes  which  gentle 
men  have  in  view  by  giving  the  power  of  removal. 
I  do  not  think  that  the  officer  is  only  to  be  removed 
by  impeachment,  as  is  argued  by  the  gentleman  from 
South  Carolina,  (Mr.  Smith,)  because  he  is  the  mere 
creature  of  the  law,  and  we  can  direct  him  to  be  re 
moved  on  conviction  of  mismanagement  or  inability 
without  calling  upon  the  Senate  for  their  concur 
rence.  But  I  believe,  if  we  make  no  such  provision, 
he  may  constitutionally  be  removed  by  the  Pres 
ident,  by  and  with  the  advice  and  consent  of  the  Sen 
ate  ;  and  I  believe  it  would  be  most  expedient  for  us 
to  say  nothing  in  the  clause  on  this  subject." 

I  may  be  pardoned  if  I  turn  aside  for  a  mo 
ment,  and,  addressing  myself  to  the  learned 
gentleman  of  counsel  for  the  respondent  who 
is  to  follow  me  in  argument,  I  request  him  to 
refute,  to  overthrow  the  constitutional  argu 
ment  of  his  illustrious  ancestor,  Koger  Sher 
man.  Doing  this,  he  will  have  overcome  the 
first,  but  only  the  first,  of  a  series  of  obstacles 
in  the  path  of  the  President. 


In  harmony  with  the  views  of  Mr.  Sherman 
was  the  opinion  expressed  by  Mr.  Jackson,  of 
Georgia,  found  on  page  508  of  the  same  volume. 
He  says : 

"  I  shall  agree  to  give  him  [that  is,  the  President] 
the  same  power  in  cases  of  removal  that  he  has  in 
appointing ;  but  nothing  more.  Upon  this  principle 
I  would  agree  to  give  him  the  power  of  suspension 
during  the  recess  of  the  Senate.  This,  in  my  opinion, 
would  effectually  provide  against  those  inconven 
iences  which  have  been  apprehended  and  not  ex 
pose  the  Government  to  those  abuses  we  have  to 
dread  from  the  wanton  and  uncontrollable  authority 
of  removing  officers  at  pleasure." 

It  may  be  well  to  observe  that  Mr.  Madison, 
in  maintaining  the  absolute  power  of  the  Pres 
ident  to  remove  civil  officers,  coupled  with  his 
opinions  upon  that  point  doctrines  concerning 
the  power  of  impeachment  which  would  be 
wholly  unacceptable  to  this  respondent.  And, 
indeed,  it  is  perfectly  apparent  that  without 
the  existence  of  the  power  to  impeach  and  re 
move  the  President  of  the  United  States  from 
office  in  the  manner  maintained  by  Mr.  Madi 
son  in  that  debate,  that  the  concession  of 
absolute  power  of  removal  would  end  in  the 
destruction  of  the  Government.  Mr.  Madison, 
in  that  debate,  said  : 

"  The  danger  to  liberty,  the  danger  of  maladminis 
tration,  has  not  yet  been  found  to  lie  so  much  in  the 
facility  of  introducing  improper  persons  into  office 
as  in  the  difficulty  of  displacing  those  who  are  un 
worthy  of  the  public  trust." — Annals  of  Congress,  p. 
515,  vol.  1. 

Again,  he  says  : 

"Perhaps  the  great  danger,  a,shas  been  observed,  of 
abuse  in  the  executive  power  lies  in  the  improper 
continuance  of  bad  men  in  office.  But  the  power  we 
contend  for  will  not  enable  him  to  do  this  ;  for  if  an 
unworthy  man  be  continued  in  office  by  an  unworthy 
President  the  House  of  Representatives  can  at  any 
time  impeach  him,  and  the  Senate  can  remove  him, 
whether  the  President  chooses  or  not.  The  danger, 
then,  consists  merely  in  this:  the  President  can  dis 
place  from  office  a  man  whose  merits  require  that  he 
should  be  continued  in  it.  Whatwill  be  the  motives 
which  the  President  can  feel  for  such  abuse  of  his 
power  and  the  restraints  that  operate  to  prevent  it  ? 
In  the  first  place  he  will  be  impeachable  by  this 
House  before  the  Senate  for  such  an  act  of  malad 
ministration  ;  for  I  contend  that  the  wanton  removal 
of  meritorious  officers  would  subject  him  to  impeach 
ment  and  removal  from  his  high  trust." — Annals  of 
Congress,  p.  517,  vol.  1. 

It  is  thus  seen  that  Mr.  Madison  took  great 
care  to  connect  his  opinions  of  the  power  of 
removal  in  the  President  with  a  distinct  decla 
ration  that  if  this  power  was  improperly  exer 
cised  by  the  President  he  would  himself  be 
liable  to  impeachment  and  removal  from  office. 
If  Mr.  Madison's  opinions  were  to  be  accepted 
by  the  President  as  a  whole,  he  would  be  as 
defenseless  as  he  is  at  the  present  time  if^ar- 
raigned  upon  articles  of  impeachment  Based 
upon  acts  of  maladministration  in J&e  removal 
of  public  officers;  The  result  of  the  debate 
upon  the  bill  for  establishing  the  executive  De 
partment  of  Foreign  Affairs  was  that  the  phrase 
in  question  which  made  the  head  of  the  Depart 
ment  "removable  from  office  by  the  President 
of  the  United  States"  was  stricken  out  by  a 
vote  of  31  in  the  affirmative  to  1*3  in  the  nega 
tive,  and  another  form  of  expression  was  intro- 


17 


duced  into  the  second  section  which  is  mani 
festly  in  harmony  with  the  views  expressed  by 
Mr.  Sherman  and  those  who  entertained  cor 
responding  opinions. 

The  second  section  is  in  these  words: 

"SKC.  2.  And  be  it  further  enacted,  That  there  shall 
be  in  the  said  Department  an  inferior  officer,  to  be 
appointed  by  the  said  principal  officer,  and  to  be  em 
ployed  therein  as  he  shall  deem  proper,  and  to  be 
called  the  chief  clerk  t>f  the  Department  9f  Foreign 
Affairs,  and  who,  whenever  the  said  principal  officer 
shall  be  removed  from  office  by  the  President  of  the 
United  States,  or  in  other  case  of  vacancy,  shall, 
during  such  vacancy,  have  the  charge  and  custody 
of  all  records,  books,  and  papers  appertaining  to  said 
Department.''—  United  'States  Statutes-at-Large,  vol.  1, 

It  wiil  be  seen  that  the  phrase  here  employed, 
''whenever  the  said  principal  officer  shall  be 
removed  from  office  by  the  President  of  the 
United  States,"  is  not  a  grant  of  power  to  the 
President;  nor  is  it,  as  was  asserted  by  the 
counsel  for  the  respondent,  a  legislative  inter 
pretation  of  a  constitutional  power.  But  it  is 
merely  at  most  a  quasi  recognition  of  a  power 
in  the  Constitution  to  be  exercised  by  the  Pres 
ident,  at  some  time,  under  some  circumstances, 
and  subject  to  certain  limitations.  But  there  is 
no  statement  or  declaration  of  the  time  when 
such  power  could  be  exercised,  the  circum 
stances  under  which  it  might  be  exercised,  or 
the  limitations  imposed  upon  its  exercise. 

All  these  matters  are  left  subject  to  the  op 
eration  of  the  Constitution  and  to  future  legis 
lation.  This  is  in  entire  harmony  with  the 
declaration  made  by  Mr.  White,  of  North 
Carolina,  in  the  debate  of  1789.  He  says: 

"Let  us  then  leave  the  Constitution  to  a  free  oper 
ation,  and  let  the  President,  with  or  without  the 
consent  of  the  Senate,  carry  it  into  execution.  Then, 
if  anyone  supposes  himself  injured  by  their  determ 
ination,  let  him  have  recourse  to  the  law,  and  its 
decision  will  establish  the  true  construction  of  the 
Constitution." 

Mr.  Gerry,  of  Massachusetts,  also  said : 

"  Hence  all  construction  of  the  meaning  of  the  Con 
stitution  is  dangerous  or  unnatural,  and  therefore 
ought  to  be  avoided.  This  is  our  doctrine,  that  no 
power  of  this  kind  ought  to  be  exercised  by  the  Legis 
lature.  But  we  say,  if  we  must  give  a  construction 
to  the  Constitution,  it  is  more  natural  to  give  the  con 
struction  in  favorof  the  power  of  removal  vestingin 
the  President,  by  and  vfith  the  advice  and  consent  of 
the  Seriate;  because  it  is  in  the  nature  of  things  that 
the  power  which  appoints  removes  also." 

Again,  Mr.  Sherman  said,  speaking  of  the 
words  which  were  introduced  into  the  first 
section  and  finally  stricken  out: 

"  I  wish,  Mr.  Chairman,  that  the  words  may  be  left 
out  of  the  bill,  without  giving  up  the  question  either 
way  as  to  the  propriety  of  the  measure." 

The  debate  upon  the  bill  relating  to  the  De 
partment  for  Foreign  Affairs  occurred  in  the 
month  of  June,  1789  ;  in  the  following  month 
of  August  Congress  was  engaged  in  consider 
ing  the  bill  establishing  the  Treasury  Depart 
ment.  This  bill  originated  in  the  House,  and 
contained  the  phrase  now  found  in  it,  being 
the  same  as  that  contained  in  the  bill  establish 
ing  the  State  Department. 

The  Senate  was  so  far  satisfied  of  the  impol 
icy  of  making  any  declaration  whatever  upon 


the  subject  of  removal  that  the  clause  was 
struck  out  by  an  amendment.  The  House  re 
fused  to  concur,  however,  and  the  Senate,  by 
the  casting  vote  of  the  Vice  President,  receded 
!  from  the  amendment. 

All  this  shows  that  the  doctrine  of  the  right 
of  removal  by  the  President  survived  the  de 
bate  only  as  a  limited  and  doubtful  right  at 
most. 

The  results  reached  by  the  Congress  of  1789 
are  conclusive  upon  the  following  points :  ihat 
that  body  was  of  opinion  that  the  power  of 
removal  was  not  in  the  President  absolutely, 
to  be  exercised  at  all  times  and  under  all  cir 
cumstances;  and  secondly,  that  during  the  ses 
sions  of  the  Senate  the  power  of  removal  was 
vested  in  the  President  and  Senate,  to  be 
exercised  by  their  concurrent  action ;  while 
the  debate  and  the  votes  indicate  that  the  power 
of  the  President  to  remove  from  office  during 
the  vacation  of  the  Senate  was,  at  best,  a 
doubtful  power  under  the  Constitution. 

It  becomes  us  next  to  consider  the  practice 
of  the  Government,  under  the  Constitution, 
and  in  the  presence  of  the  action  of  the  First 
Congress,  by  virtue  of  which  the  President  now 
claims  an  absolute,  unqualified,  irresponsible 
power  over  all  public  officers,  and  this  without 
the  advice  and  consent  of  the  Senate  or  the 
concurrence  of  any  other  branch  of  the  Gov 
ernment.  In  the  early  years  of  the  Govern 
ment  the  removal  of  a  public  officer  by  the 
President  was  a  rare  occurrence,  and  it  was 
usually  resorted  to  during  the  session  of  the 
Senate,  for  misconduct  hi  office  only,  and  ac 
complished  by  the  appointment  of  a  successor 
through  the  advice  and  consent  of  the  Senate. 
Gradually  a  practice  was  introduced,  largely 
through  the  example  of  Mr.  Jefferson,  of  re 
moving  officers  during  the  recess  of  the  Sen 
ate  and  filling  their  places  under  commissions 
to  expire  at  the  end  of  the  next  session.  But 
it  cannot  be  said  that  this  practice  became  com 
mon  until  the  election  of  General  Jackson,  in 
1828.  During  his  administration  the  practice 
of  removing  officers  during  the  recesses  of  the 
Senate  was  largely  increased,  and  in  the  year 
1832,  on  the  18th  of  September,  General  Jack 
son  removed  Mr.  Duane  from  the  office  of  Sec 
retary  of  the  Treasury.  This  occurred,  how 
ever,  during  a  recess  of  the  Senate.  This  act 
on  his  part  gave  rise  to  a  heated  debate  in 
Congress  and  an  ardent  controversy  through 
out  the  country,  many  of  the  most  eminent 
men  contending  that  there  was  no  power  in 
the  President  to  remove  a  civil  officer,  even 
during  the  recess  of  the  Senate.  The  triumph 
of  General  Jackson  in  that  controversy  gave  a 
full  interpretation  to  the  words  which  had  been 
employed  in  the  statute  of  1789. 

But.  at  the  same  time,  the  limitations  of  that 
power  in  the  President  were  clearly  settled, 
both  upon  the  law  and  upon  the  Constitution, 
that  whatever  might  be  his  power  of  removal 
during  a  recess  of  the  Senate,  he  had  no  right 
to  make  a  removal  during  a  session  of  th'_  Sen- 


18 


ate,  except  upon  the  advice  and  consent  of  that  ' 
body  to  the  appointment  of  a  successor.    This  ; 
was  the  opinion  of  Mr.  Johnson  himself,  as 
stated  by  him  in  a  speech  made  in  the  Senate 
on  the  10th  of  January,  1801: 

"  I  meant  that  the  true  way  to  fight  the  battle  was  j 
for  us  to  remain  here  and  occupy  the  places  assigned 
to  us  by  the  Constitution  of  the  country.     Why  did  L 
make  that  statement?  It  wa.s  because  on  the  4th  day  I 
of  March  next  we  shall  have  six  majority  in  this  j 
body;  and  if,  as  some  apprehended,  the  incoming  ! 
Administration  shall  show  any  disposition  to  make 
encroachments  upon  the  institution  of  slavery,  en-  j 
croachments  upon  the  rights  of  the  States  or  any  i 
other  violation  of  the  Constitution,  we,  by  remaining 
in  the  Union  and  standing  at  our  places,  will  have 
the  power  to  resist  all  these  encroachments.    How?  i 
We  have  the  power  even  to  reject  the  appointment 
of  the  Cabinet  officers  of  the  incoming  President. 
Then  should  we  not  be  fighting  the  battle  in  the 
Union  by  resisting  even  the  organization  of  the  Ad 
ministration  in  a  constitutional  mode,  and  thus,  at 
the  very  start,  disable  an  Administration  which  was 
likely  to  encroach  on  our  rights  and  to  violate  the 
Constitution  of  the  country?    So  far  as  appointing 
even  a  minister  abroad  is  concerned,  the  incoming 
Administration  will  have  no  power  without  our  con-, 
sent  if  we  remain  here.    It  comes  into  office  hand 
cuffed,  powerless  to  do  harm.    We,  standing  here, 
hold  the  balance  of  power  in  our  hands;  we  can  resist 
it  at  the  very  threshold  effectually,  and  do  it  inside 
of  the  Union  and  in  our  house.    The  incoming  Ad 
ministration  has  not  even  the  power  to  appoint  a 
postmaster  whose  salary  exceeds  $1,000  a  year  with 
out  consultation  with,  and  the  acquiescence  of,  the 
Senate  of  the  United  States.    The  President  has;not 
even  the  power  to  draw  his  salary,  his  $25,000  per 
annum,  unless  we    appropriate  it." — Congressional 
Globe,  vol. — ,  page — . 

It  may  be  well  observed  that,  for  the  pur 
poses  of  this  trial,  and  upon  the  question 
whether  the  President  is  or  is  not  guilty  under 
the  first  three  articles  exhibited  against  him  by 
the  House  of  Representatives,  it  is  of  no  con 
sequence  whether  the  President  of  the  United 
States  has  power  to  remove  a  civil  officer  dur 
ing  a  recess  of  the  Senate.  The  fact  charged 
and  proved  against  the  President,  and  oil  which, 
as  one  fact  proved  against  him,  we  demand  his 
conviction,  is,  that  he  attempted  to  remove 
Mr.  Stanton  from  the  office  of  Secretary  of 
War  during  a  session  of  the  Senate.  It  can 
not  be  claimed  with  any  propriety  that  the  act 
of  1789  can  be  construed  as  a  grant  of  power 
to  the  President  to  an  extent  beyond  the  prac 
tice  of  the  Government  for  three  quarters  of 
a  century  under  the  Constitution  and  under 
the  provisions  of  the  law  of  1789.  None  of 
the  predecessors  of  Mr.  Johnson,  from  General 
Washington  to  Mr.  Lincoln,  although  the  act 
of  1789  was  in  existence  during  all  that  period, 
had  ever  ventured  to  claim  that  either  under 
that  act  or  by  virtue  of  the  Constitution  the 
President  of  the  United  States  had  power  to 
remove  a  civil  officer  during  a  session  of  the 
Senate  without  its  consent  and  advice.  The 
utmost  that  can  be  said  is,  that  for  the  last 
forty  years  it  had  been  the  practice  of  the  Ex 
ecutive  to  remove  civil  officers  at  pleasure  dur 
ing  the  recess  of  the  Senate.  While  it  maybe 
urged  that  this  practice,  in  the  absence  of  any 
direct  legislation  upon  the  subject,  had  become 
the  common  law  of  the  country,  protecting  the 
Executive  in  a  policy  corresponding  to  that 


practice,  it  is  also  true,  for  stronger  reasons, 
that  Mr.  Johnson  was  bound  by  his  oatn  of 
office  to  adhere  to  the  practice  of  his  prede 
cessors  in  other  particulars,  none  of  whom  had 
i  ever  ventured  to   remove  a  civil  officer  from 
:  his  office  during  the  session  of  the  Senate  and 
!  appoint  a  successor,  either  permanent  or  ad 
j  interim,  and  authorize  that  successor  to  enter 
;  upon  the  discharge  of  the  duties  of  such  office. 
j  The  case  of  Timothy  Pickering  has  been  ex- 
|  plained  and  it  constitutes  no  exception.     As 
I  far  as  is  known  to  me  the  lists  of  removals  and 
appointments  introduced  by  the  respondent  do 
not  sustain  the  claim  of  the  answer  in  regard 
to  the  power  of  removal. 

Hence  it  is  that  the  act  of  1789  is  no  security 
to  this  respondent,  and  hence  it  is  that  we  hold 
him  guilty  of  a  violation  of  the  Constitution  and 
of  his  oath  of  office  under  the  first  and  third 
articles  of  impeachment  exhibited  against  him 
by  the  House  of  Representatives,  and  this  with 
out  availing  ourselves  of  the  provisions  of  the 
tenure-of-office  act  of  March  2,  1867. 

I  respectfully  ask  that  the  views  now  sub 
mitted  in  reference  to  the  act  of  1789,  may  be 
considered  in  connection  with  the  argument  I 
have  already  offered  upon  the  true  meaning 
of  the  provisions  of  the  Constitution  relating 
to  the  appointment  of  civil  officers. 

I  pass  now  to  the  consideration  of  the  act 
of  the  13th  of  February,  1795,  on  which  the 
President  relies  as  a  justification  for  his  ap 
pointment  of  Lorenzo  Thomas  as  Secretary  of 
War  ad  interim.  By  this  act  it  is  provided : 

"In  case  of  vacancy  in  the  office  of  Secretary  of 
State,  the  Secretary  of  the  Treasury,  or  of  thu  Sec 
retary  of  the  Department  of  War,  or  of  any  other 
officer  of  either  of  the  said  Departments  whose  ap 
pointment  is  not  in  the  head  thereof,  whereb}'  they 
cannot  perform  the  duties  of  their  said  respective 
offices,  it  shall  be  lawful  for  the  President  of  the  United 
States,  in  case  he  shall  think  it  necessary,  to  author 
ize  any  person  or  persons,  at  his  discretion,  to  per 
form  the  duties  of  the  said  respective  offices  until  a 
successor  be  appointed  or  such  vacancy  be  tilled: 
Provided,  That  no  one  vacancy  shall  be  supplied 
in  manner  aforesaid,  for  a  longer  term  than  six 
months."—!  Statutes-ut-Large,  p.  415. 

The  ingenuity  of  the  .President  and  his  coun 
sel  has  led  them  to  maintain  that  the  phrase 
"in  case  of  vacancy,"  used  in  this  statute, 
relates  to  any  and  every  vacancy,  however  pro 
duced.  But  the  reading  of  the  entire  section, 
whether  casually  or  carefully,  shows  that  the 
purpose  of  the  law  was  to  provide  a  substitute 
temporarily  in  case  of  vacancy  whereby  the 
person  in  office  could  not  perform  the  duties 
of  his  office,  and  necessarily  applied  only  to 
those  contingencies  of  official  life  which  put  it 
out  of  the  power  of  the  person  in  office  to  dis 
charge  the  duties  of  the  place;  such  as  sick 
ness,  absence,  or  inability  of  any  sort.  And 
yet  the  President  and  his  counsel  contend  that 
a  removal  by  the  President  is  a  case  of  vacancy 
contemplated  by  the  law,  notwithstanding  the 
limitation  of  the  President  in  his  power  of 
appointing  an  officer  temporarily  as  to  those 
cases  which  render  it  impossible  for  the  duly 
commissioned  officer  to  perform  the  duties  of 


19 


his  office.  When  it  is  considered,  as  I  have 
shown,  that  the  President  had  no  power — and 
this  without  considering  the  tenure- of- office  act 
of  March  2,  1867 — to  create  a  vacancy  during 
a  session  of  the  Senate,  the  act  of  1795,  even 
upon  his  construction,  furnishes  no  defense 
whatever.  But  we  submit  that  if  he  had  pos 
sessed  the  power  which  he  claims  by  virtue  of 
the  act  of  1789,  that  the  vacancy  referred  to  in 
the  act  of  1795  is  not  such  a  vacancy  as  is 
caused  by  the  removal  of  a  public  officer,  but 
that  that  act  is  limited  to  those  vacancies  which 
arise  unavoidably  in  the  public  service  and 
without  the  agency  of  the  President.  But  there 
is  in  the  section  of  the  act  of  1795,  on  which 
the  President  relies,  a  proviso  which  nullifies 
absolutely  the  defense  which  he  has  set  up. 
This  proviso  is  that  no  one  vacancy  shall  be 
supplied  in  manner  aforesaid  (that  is,  by  a 
temporary  appointment)  for  a  longer  term  than 
six  months. 

Mr.  Johnson  maintains  that  he  suspended 
Mr.  Stanton  from  the  office  of  Secretary  of  War 
on  the  12th  of  August  last,  not  by  virtue  of  the 
tenure-of-office  act  of  March  2,  1867,  but  under 
a  power  incident  to  the  general  and  unlimited 
power  of  removal,  which,  as  he  claims,  is  vested 
in  the  President  of  the  United  States,  and  that, 
from  the  12th  of  August  last,  Mr.  Stanton  has 
not  been  entitled  to  the  office  of  Secretary  for 
the  Department  of  War.  if  he  suspended  Mr. 
Stanton  as  an  incident  of  his  general  power  of 
removal,  then  his  suspension,  upon  the  Presi 
dent's  theory,  created  a  vacancy  such  as  is 
claimed  by  the  President  under  the  statute  of 
1795.  The  suspension  of  Mr.  Stanton  put  him 
in  such  a  condition  that  he  "  could  not  perform 
the  duties  of  the  office. ' '  The  President  claims 
also  to  have  appointed  General  Grant  Secretary 
of  War  ad  interim  on  the  12th  of  August  last, 
by  virtue  of  the  statute  of  1795.  The  proviso 
of  that  statute  declares  that  no  one  vacancy 
shall  be  supplied  in  manner  aforesaid  (that  is, 
by  temporary  appointment)  for  a  longer  term 
than  six  months.  If  the  act  of  1795  were  in 
force,  and  if  the  President's  theory  of  his  rights 
under  the  Constitution  and  under  that  act  were 
•  a  valid  theory,  the  six  months  during  which 
the  vacancy  might  have  been  supplied  tempo 
rarily  expired  by  limitation  on  the  12th  day  of 
February,  1868,  and  yet  on  the  21st  day  of 
February,  1868,  the  President  appointed  Lo 
renzo  Thomas  Secretary  of  War  ad  interim  to 
the  same  vacancy,  and  this  in  violation  of  the 
statute  which  he  pleads  in  his  own  defense.  It 
w  too  clear  for  argument  that  if  Mr.  Stanton 
was  lawfully  suspended,  as  the  President  now 
claims,  but  not  suspended  under  the  tenure-of- 
office  act,  then  the  so-called  restoration  of  Mr. 
Stanton  on  the  13th  January  was  wholly  illegal. 
But  if  the  statute  of  1795  is  applicable  to  a 
vacancy  created  by  suspension  or  removal,  then 
the  President  has  violated  it  by  the  appoint 
ment  of  General  Thomas  Secretary  of  War  ad 
interim.  And  if  the  statute  of  1795  is  not  ap 
plicable  to  a  vacancy  occasioned  by  a  removal,  i 


then  the  appointment  of  General  Thomas  Sec 
retary  of  War  ad  interim  is  without  authority 
or  the  color  of  authority  of  law. 

The  fact  is,  however,  that  the  statute  of  1795 
is  repealed  by  the  operation  of  the  statute  of 
the  20th  of  February,  1863.  (Statutes-at-Large, 
vol.  12,  p.  656.) 

If  Senators  will  consider  the  provisions  of 
the  statute  of  1863  in  connection  with  the  power 
of  removal  under  the  Constitution  during  a  ses 
sion  of  the  Senate,  by  and  with  the  advice  and 
consent  of  the  Senate,  and  the  then  recognized 
power  of  removal  by  the  President  during  a 
recess  of  the  Senate  to  be  filled  by  temporary 
appointments,  as  was  the  practice  previous  to 
March  2,  1867,  they  will  find  that  provision 
was  made  by  the  act  of  1863  for  every  vacancy 
which  could  possibly  arise  in  the  public  service. 

The  act  of  February  20,  1863,  provides — 

"  That  in  case  of  the  death,  resignation,  absence 
from  the  seat  of  Government,  or  sickness  of  the  head 
of  an  executive  Department  of  the  Government,  or 
of  any  officer  of  either  of  thesaid  Departments  whose 
appointment  is  not  in  the  head  thereof,  whereby  they 
cannot  perform  the  duties  of  their  respective  offices,  it 
shall  be  lawful  forthe  President  of  the  United  States, 
in  case  he  shall  think  it  necessary,  to  authorize  the 
head  of  any  other  executive  Department  or  other 
officer  in  either  of  said  Departments  whose  appoint 
ment  is  vested  in  the  President,  at  his  discretion,  to 
perform  the  duties  of  the  said  respective  offices  until 
a  successor  be  appointed,  or  until  such  absence  or  in 
ability  shall  cease:  Provided,  That  no  one  vacancy 
shall  be  supplied  in  manner  aforesaid  for  a  longer 
term  than  six  months." 

Provision  was  thus  made  by  the  act  of  1863 
for  filling  all  vacancies  which  could  occur  under 
any  circumstances.  It  is  a  necessary  rule  of 
construction  that  all  previous  statutes  making 
other  and  different  provisions  for  the  filling  oi' 
vacancies  are  repealed  by  the  operation  of  more 
recent  statutes  ;  and  for  the  plain  reason  that 
it  is  inconsistent  with  any  theory  of  govern 
ment  that  there  should  be  two  legal  modes  in 
existence  at  the  same  time  for  doing  the  same 
thing. 

If  the  view  I  have  presented  be  a  sound  one 
it  is  apparent  that  the  President's  conduct 
finds  no  support  either  in  the  Constitution,  in 
the  act  of  1789,  or  in  the  legislation  of  1795, 
on  which  he  chiefly  relies  as  a  justification  for 
the  appointment  of  Thomas  as  Secretary  of 
War  ad  inttrim.  It  follows,  also,  that  if  the 
tenure-of-office  act  had  not  been  passed  the 
President  would  have  been  guilty  of  a  high 
misdemeanor,  in  that  he  issued  an  order  for 
the  removal  of  Mr.  Stanton  from  office  during 
tho  session  of  the  Senate,  in  violation  of  the 
Constitution  and  of  his  own  oath  of  office ; 
that  he  was  guilty  of  a  high  misdemeanor  in 
the  appointment  of  Lorenzo  Thomas  as  Sec 
retary  of  War  ad  interim,  and  this  whether 
the  act  of  the  13th  of  February,  1795,  is  in 
force,  or  whether  the  same  has  been  repealed 
by  the  statute  of  1863.  His  guilt  is  thus  fully 
proved  and  established  as  charged  in  the  first, 
second,  and  third  articles  of  impeachment 
exhibited  against  him  by  the  House  of  Repre 
sentatives,  and  this  without  considering  the 


20 


requirements  or   constitutionality  of  the   act 
regulating  the  tenure  of  certain  civil  offices. 

i  pass  now  to  the  consideration  of  the  tenure- 
of- office  act.  I  preface  \vhat  I  have  to  say  by 
calling  to  your  attention  that  portion  of  my 
argument  already  addressed  to  you,  in  which 
I  have  set  forth  and  maintained,  as  I  was  able, 
the  opinion  that  the  President  had  no  right  to 
make  any  inquiry  whether  an  act  of  Congress 
is  or  is  not  constitutional;  that,  having  no  right 
to  make  such  inquiry,  he  could  not  plead  that 
he  had  so  inquired  and  reached  the  conclu 
sion  that  the  act  inquired  about  was  invalid. 
You  will  also  bear  in  mind  the  views  presented, 
that  this  tribunal  can  take  no  notice  of  any 
argument  or  suggestion  that  a  law  deemed 
unconstitutional  may  be  willfully  violated  by 
the  President.  The  gist  of  his  crime  is  that 
he  intentionally  disregarded  a  law,  and,  in  the 
nature  of  the  case,  it  can  be  no  excuse  or  de 
fense  that  such  law,  in  his  opinion,  or  in  the 
opinion  of  others,  was  not  in  conformity  with 
the  Constitution. 

In  this  connection  I  desire  to  call  your  at 
tention  to  suggestions  made  by  the  President, 
and  by  the  President's  counsel — by  the  Presi 
dent  in  his  message  of  December,  1867,  and 
by  the  President's  counsel  in  his  opening  argu 
ment — that  if  Congress  were  by  legislation  to 
abolish  a  department  of  the  Government,  or 
to  declare  that  the  President  should  not  be 
Commander-in-Chief  of  the  Army  or  the  Navy, 
that  it  would  be  the  duty  of  the  President  to 
disregard  such  legislation.  These  are  extreme 
cases  and  not  within  the  range  of  possibility. 
Members  of  Congress  are  individually  bound 
by  an  oath  to  support  the  Constitution  of  the 
United  States,  and  it  is  not  to  be  presumed, 
even  for  the  purpose  of  argument,  that  they 
would  wantonly  disregard  the  obligations  of 
their  oath,  and  enact  in  the  form  of  law  rules 
or  proceedings  in  plain  violation  of  the  Con 
stitution.  Such  is  not  the  course  of  legisla 
tion,  and  such  is  not  the  character  of  the  act 
we  are  now  to  consider.  The  bill  regulating 
the  tenure  of  certain  civil  offices  was  passed 
by  a  constitutional  majority  in  each  of  the  two 
Houses,  and  it  is  to  be  presumed  that  each 
Senator  and  Representative  who  gave  it  his 
support  did  so  in  the  belief  that  its  provisions 
were  in  harmony  with  the  provisions  of  the 
Constitution.  We  are  now  dealing  with  prac 
tical  affairs,  and  conducting  the  Government 
within  the  Constitution  ;  and  in  reference  to 
measures  passed  by  Congress  under  such  cir 
cumstances,  it  is  wholly  indefensible  for  the 
President  to  suggest  the  course  that,  in  his 
opinion,  he  would  be  justified  in  pursuing  if 
Congress  were  openly  and  wantonly  to  disre 
gard  the  Constitution  and  inaugurate  revolu 
tion  in  the  Government. 

It  is  asserted  by  the  cotmsel  for  the  President 
that  he  took  advice  as  to  the  constitutionality 
of  the  tenure-of-office  act,  and  being  of  opin 
ion  that  it  was  unconstitutional,  or  so  much 
of  it  at  least  as  attempted  to  deprive  him  of 


the  power  of  removing  the  members  of  the 
Cab'net,  he  felt  it  to  be  his  duty  'to  disregard 
its  provisions ;  and  the  question  is  now  put 
with  feeling  and  emphasis  whether  the  Pres 
ident  is  to  be  impeached,  convicted,  and 
removed  from  office  for  a  mere  difference  of 
opinion.  True,  the  President  is  not  to  be 
removed  for  a  mere  difference  of  opinion.  If 
he  had  contented  himself  with  the  opinion  that 
the  law  was  unconstitutional,  or  even  with  the 
expression  of  such  an  opinion  privately  or  offi 
cially  to  Congress,  no  exception  could  Lave 
been  taken  to  his  conduct.  But  he  has  at 
tempted  to  act  in  accordance  with  that  opinion, 
and  in  that  action  he  has  disregarded  the  re 
quirements  of  the  statute.  It  is  for  this  action 
that  he  is  to  be  arraigned,  and  is  to  be  con 
victed.  But  it  is  not  necessary  for  us  to  rest 
upon  the  doctrine  that  it  was  the  duty  of  the 
President  to  accept  the  law  as  constitutional 
and  govern  himself  accordingly  in  all  his  official 
doings.  We  are  prepared  to  show  that  the  law 
is  in  truth  in  harmony  with  the  Constitution, 
and  that  its  provisions  apply  to  Mr.  Stanton  as 
Secretary  for  the  Department  of  War. 

The  tenure-of-office  act  makes  no  change  in 
the  powers  of  the  President  and  the  Senate, 
during  the  session  of  the  Senate,  to  remove  a 
civil  officer  upon  a  nomination  by  the  Presi 
dent,  and  confirmation  by  the  Senate,  of  a 
successor.  This  was  an  admitted  constitutional 
power  from  the  very  organization  of  the  Gov 
ernment,  while  the  right  now  claimed  by  the 
President  to  remove  a  civil  officer  during  a 
session  of  the  Senate,  without  the  advice  and 
consent  of  the  Senate,  was  never  asserted  by 
any  of  his  predecessors,  and  certainly  never 
recognized  by  any  law  or  by  any  practice.  This 
rule  applied  to  heads  of  Departments  as  well 
as  to  other  civil  officers,  indeed,  it  may  be 
said,  once  for  all,  that  the  tenure  by  which 
members  of  the  Cabinet  have  held  their  places 
corresponds  in  every  particular  to  the  tenure 
by  which  other  civil  officers  have  held  theirs. 
It  is  undoubtedly  true  that,  in  practice,  mem 
bers  of  the  Cabinet  have  been  accustomed  to 
tender  their  resignations  upon  a  suggestion 
from  the  President  that  such  a  course  would 
be  acceptable  to  him.  But  this  practice  has 
never  changed  their  legal  relations  to  the  Pres 
ident  or  to  the  country.  There  was  never  a 
moment  of  time,  since  the  adoption  of  the  Con 
stitution,  when  the  law  or  the  opinion  of  the 
Senate  recognized  the  right  of  the  President 
to  remove  a  Cabinet  officer  during  a  sessioi; 
of  the  Senate,  without  the  consent  of  the  Sen 
ate  given  through  the  confirmation  of  a  sue 
cessor.  Hence,  in  this  particular,  the  tenure- 
of-office  act  merely  enacted  and  gave  form  to 
a  practice  existing  from  the  foundation  of  the 
Government — a  practice  in  entire  harmony 
with  the  provisions  of  the  Constitution  upon 
that  subject.  The  chief  change  produced  bj 
the  tenure-of-office  act  had  reference  to  re 
movals  during  the  recess  of  the  Senate.  Pre 
vious  to  the  ^d  of  March,  1867,  as  has  been 


21 


already  shown,  it  was  the  practice  of  the  Pres 
ident  during  the  recesses  of  the  Senate  to  re 
move  civil  officers  and  to  grant  commissions 
to  other  persons  under  the  third  clause  of  the 
second  section  of  the  second  article  of  the 
Constitution.  This  power,  as  has  been  seen, 
was  a  doubtful  one  in  the  beginning.  The 
practice  grew  up  under  the  act  of  1789,  but 
the  right  of  Congress  by  legislation  to  regulate 
the  exercise  of  that  power  was  not  questioned 
in  the  great  debate  of  that  year,  nor  can  it 
reasonably  be  drawn  into  controversy  now. 

The  act  of  March  2,  1867,  declares  that  the 
President  shall  not  exercise  the  power  of  re 
moval,  absolutely,  during  the  recess  of  the 
Senate,  but  that  if  any  officer  shall  be  shown, 
by  evidence  satisfactory  to  the  President,  to  be 
guilty  of  misconduct  in  office,  or  of  crime,  or 
for  any  reason  shall  become  incapable  or  legally 
disqualified  to  perform  his  duties,  the  President 
may  suspend  him  from  office  and  designate 
some  suitable  person  to  perform  temporarily 
the  duties  ol'such  office  until  the  next  meeting  of 
the  Senate  and  the  action  of  the  Senate  thereon. 

By  this  legislation  the  removal  is  qualified 
and  is  made  subject  to  the  final  action  of  the 
Senate  instead  of  being  absolute,  as  was  the 
fact  under  the  practice  theretofore  prevailing. 
It  is  to  be  observed,  however,  that  this  feature 
of  the  act  regulating  the  tenure  of  certain  civil 
offices  is  not  drawn  into  controversy  by  these 
proceedings,  and  therefore  it  is  entirely  unim 
portant  to  the  President  whether  that  provision 
of  the  act  is  constitutional  or  not.  I  can,  how 
ever,  entertain  no  doubt  of  its  constitutionality. 
The  record  of  the  case  shows  that  Mr.  Stanton 
was  suspended  from  office  during  the  recess, 
but  was  removed  from  office,  as  far  as  anorder 
of  the  President  could  effect  his  removal,  dur 
ing  a  session  of  the  Senate.  It  is  also  wholly 
immaterial  to  the  present  inquiry  whether  the 
suspension  of  Mr.  Stanton  on  the  12th  of 
August,  1867,  was  made  under  the  tenure-of- 
office  act,  or  in  disregard  of  it,  as  the  President 
now  asserts.  It  being  thus  clear  that  so  much 
of  the  act  as  relates  to  appointments  and  re 
movals  from  office  during  the  session  of  the 
Senate  is  in  harmony  with  the  practice  of  the 
Government  from  the  first,  and  in  harmony 
with  the  provisions  of  the  Constitution  on  which 
that  practice  was  based,  and  it  being  admitted 
that  the  order  of  the  President  for  the  removal 
of  Mr.  Stanton  was  issued  during  a  session  of 
the  Senate,  it  is  unnecessary  to  inquire  whether 
the  other  parts  of  the  act  are  constitutional  or 
not,  and  also  unnecessary  to  inquire  what  the 
provisions  of  the  act  are  in  reference  to  the 
heads  of  the  several  Executive  Departments.  I 
presume  authorities  are  not  needed  to  show 
that  a  law  may  be  unconstitutional  and  void  in 
some  of  its  parts,  and  the  remaining  portions 
continue  in  full  force. 

The  body  of  the  first  section  of  the  act  regu 
lating  the  tenure  of  certain  civil  offices  is  in 
tlu.'se  words : 

"  Every  person  holding  any  civil  office  to  which  he 


has  been  appointed  by  and  with  the  advice  and  con 
sent  of  the  Senate,  and  every  person  who  shall  here 
after  be  appointed  to  any  such  office,  and  shall  be 
come  duly  qualified  to  act  therein,  is,  and  shall  be 
entitled,  to  hold  such  office  until  a  successor  shall 
have  been  in  like  manner  appointed  and  duly  quali 
fied,  except  as  herein  otherwise  provided." 

Omitting  for  the  moment  to  notice  the  excep 
tion,  there  can  be  no  doubt  that  this  provision 
would  have  applied  to  the  Secretary  of  War, 
and  to  every  other  civil  officer  under  the  Gov 
ernment  ;  nor  can  there  be  any  doubt  that  the 
removal  of  Mr.  Stanton  during  a  session  of  the 
Senate  is  a  misdemeanor  by  the  law,  and  pun 
ishable  as  such  under  the  sixth  section  of  the 
act,  unless  the  body  of  the  section  quoted  is  so 
controlled  by  the  proviso  as  to  take  the  Secre 
tary  of  War  out  of  its  grasp.  The  proviso  is 
in  these  words : 

"That  the  Secretaries  of  State,  of  the  Treasury,  of 
War,  of  the  Navy,  and  of  the  Interior,  the  Postmaster 
General,  and  the  Attorney  General  shall  hold  their 
offices  respectively  for  and  during  the  term  of  the 
President  by  whom  they  may  have  been  appointed 
and  one  month  thereafter,  subject  to  removal  by  and 
with  the  advice  and  consent  of  the  Senate." 

We  maintain  that  Mr.  Stanton,  as  Secre 
tary  of  War,  was,  on  the  2d  day  of  March, 
1867,  within  and  included  under  the  language 
of  the  proviso,  and  was  to  hold  his  office  for 
and  during  the  term  of  the  President  by  whom 
he  had  been  appointed,  and  one  month  there 
after,  subject  to  removal,  however,  by  and  with 
the  advice  and  consent  of  the  Senate.  We 
maintain  that  Mr.  Stanton  was  then  holding 
the  office  of  Secretary  of  War  for  and  in  the 
term  of  President  Lincoln,  by  whom  he  had 
been  appointed;  that  that  term  commenced 
on  the  4th  of  March,  1865,  and  will  end  on  the 
4th  of  March,  1869.  The  Constitution  defines 
the  meaning  of  the  word  "term."  When 
speaking  of  the  President,  it  says : 

"He  shall  hold  his  office  during  the  term  of  four 
years,  and,  together  with  the  Vice  President,  chosen 
for  the  same  term,  be  elected  as  follows." 

Now,  then,  although  the  President  first 
elected  may  die  during  his  term,  the  office  and 
the  term  of  the  office  still  remain.  Having 
been  established  by  the  Constitution,  it  is  not 
in  any  degree  dependent  upon  the  circumstance 
whether  the  person  elected  to  the  term  shall 
survive  to  the  end  or  not.  It  still  is  a  presi 
dential  term.  It  still  is  in  law  the  term  of  the 
President  who  was  elected  to  the  office.  The 
Vice  President  was  chosen  at  the  same  time 
and  elected  for  the  same  term.  But  it  is  the 
term  of  a  different  office  from  that  of  Presi 
dent — the  term  of  the  office  of  Vice  President. 
Mr.  Johnson  was  elected  to  the  office  of  Vice 
President  for  the  term  of  four  years.  Mr.  Lin 
coln  was  elected  to  the  office  of  President  for 
the  term  of  four  years.  Mr.  Lincoln  died  in 
the  second  month  of  his  term,  and  Mr.  John 
son  succeeded  to  the  office. 

It  was  not  a  new  office;  it  was  not  a  new 
term.  He  succeeded  to  Mr.  Lincoln's  office, 
and  for  the  remainder  of  Mr.  Lincoln's  term  of 
office.  He  is  serving  out  Mr.  Lincoln's  term 


22 


as  President.  The  law  says  that  the  Secre 
taries  shall  hold  their  offices  respectively  for 
and  during  the  term  of  the  President  by  whom 
they  may  have  been  appointed.  Mr.  Lincoln's 
term  commenced  on  the  4th  of  March,  1805. 
Mr.  Stanton  was  appointed  by  Mr.  Lincoln; 
he  was  in  office  in  Mr.  Lincoln's  term,  when 
the  act  regulating  the  tenure  of  certain  civil 
offices  was  passed ;  and  by  the  proviso  of  that 
act  he  was  entitled  to  hold  that  office  until  one 
month  after  the  4th  of  March,  1869,  unless  he 
should  be  sooner  removed  therefrom,  by  and 
with  the  advice  and  consent  of  the  Senate. 

The  act  of  March  1,  1792,  concerning  the 
succession,  in  case  the  office  of  President  and 
Vice  President  both  become  vacant,  recognizes 
the  presidential  term  of  four  years  as  the  con 
stitutional  term.  Any  one  can  understand  that 
in  case  of  vacancy  in  the  office  of  President 
and  Vice  President,  and  in  case  of  anew  elec 
tion  by  the  people,  that  it  would  be  desirable 
to  make  the  election  for  the  remainder  of  the 
term.  But  the  act  of  1792  recognizes  the  im 
possibility  of  this  course  in  the  section  which 
provides  that  the  term  of  four  years  for  which  a 
President  and  Vice  President  shall  be  elected 
(that  is,  in  case  of  a  new  election,  as  stated,) 
shall  in  all  cases  commence  on  the  4th  clay  of 
March  next  succeeding  the  day  on  which  the 
votes  of  the  electors  shall  have  been  given. 

It  is  thus  seen  that  by  an  election  to  fill  a 
vacancy  the  Government  would  be  so  far 
changed  in  its  practical  working  that  the  sub 
sequent  elections  of  President,  except  by  an 
amendment  to  the  Constitution,  could  never 
again  occur  in  Xhe  years  divisible  by  four,  as  at 
present,  and  might  not  answer  to  the  election 
of  members  to  the  House  of  Representatives, 
for  the  presidential  elections  might  occur  in 
the  years  not  divisible  by  two.  The  Congress 
of  1792  acted  upon  the  constitutional  doctrine 
that  the  presidential  term  is  four  years  and 
cannot  be  changed  by  law. 

On  the  21st  of  February,  1868,  while  the 
Senate  of  the  United  States  was  in  session,  Mr. 
Johnson,  in  violation  of  the  law — which,  as  we 
have  already  seen,  is  in  strict  harmony  in  this  j 
particular  with  the  Constitution  and  with  the 
practice  of  every  Administration  under  the  Con 
stitution  from  the  beginning  of  the  Govern 
ment — issued  an  order  for  the  removal  of  Mr. 
Stanton  from  his  office  as  Secretary  for  the 
Department  of  War.  If,  however,  it  be  claimed 
that  the  proviso  does  not  apply  to  the  Secretary 
of  War,  then  he  does  not  come  within  the  only 
exception  made  in  the  statute  to  the  general 
provision  in  the  body  of  the  first  section  already  } 
quoted  ;  and  Mr.  Stanton,  having  been  ap 
pointed  to  office  originally  by  and  with  the 
advice  and  consent  of  the  Senate,  could  only 
be  removed  by  the  nomination  and  appoint 
ment  of  a  successor  by  and  with  the  advice 
and  consent  of  the  Senate.  Hence,  upon  either 
theory,  it  is  plain  that  the  President  violated  the 
tenure-of-officeact  in  the  order  which  he  issued 
on  the  21st  of  February,  A.  D.  1868,  for  the 


removal  of  Mr.  Stanton  from  the  office  of  Sec 
retary  for  the  Department  of  War,  the  Senate 
of  the  United  States  being  then  in  session. 

In  support  of  the  view  I  have  presented  I 
refer  to  the  official  record  of  the  amendments 
made  to  the  first  section  of  the  tenure-of-office 
act.  On  the  18th  of  January,  1867,  the  bill 
passed  the  Senate,  and  the  first  section  thereof 
was  in  these  words  : 

"That  every  person  [excepting  the  Secretaries 
of  State,  of  the  Treasury,  of  War,  of  the  Navy,  and 
of  the  Interior,  the  Postmaster  General,  and  the 
Attorney  General]  holding  any  civil  oiiice  to  which 
he  has  been  appointed  by  and  with  the  advice  and 
consent  of  the  Senate,  and  every  person  who  shall 
hereafter  be  appointed  to  any  such  office,  arid  shall 
become  duly  qualified  to  act  therein,  is,  and  shall  be, 
entitled  to  hold  such  office  until  a  successor  shall 
have  been  in  like  manner  appointed  and  duly  quali 
fied,  except  as  herein  otherwise  provided." 

On  the  2d  of  February  the  House  passed 
the  b*ll  with  an  amendment  striking  out  the 
words  included  in  brackets.  This  action  shows 
that  it  was  the  purpose  of  the  House  to  include 
heads  of  Departments  in  the  body  of  the  bill, 
and  subject  them  to  its  provisions  as  civil 
officers,  who  were  to  hold  their  places  by  and 
with  the  advice  and  consent  of  the  Senate,  and 
subject,  during  the  session  of  the  Senate,  to 
removal  by  and  with  the  advice  and  consent 
of  the  Senate  only ;  but  subject  to  suspension 
under  the  second  section  during  a  recess  of 
the  Senate  as  other  civil  officers,  by  virtue  of 
the  words  at  the  close  of  the  section,  "except 
as  herein  otherwise  provided."  At  the  time 
the  bill  was  pending  between  the  two  Houses 
there  was  no  proviso  to  the  first  section,  and 
the  phrase  "  except  as  otherwise  herein  pro 
vided"  related  necessarily  to  the  second  and 
to  the  subsequent -sections  of  the  bill.  On  the 
Oth  of  February  the  Senate  refused  to  agree 
to  the  House  amendment,  and  by  the  action 
of  the  two  Houses  the  bill  was  referred  to  a 
committee  of  conference.  The  conference 
committee  agreed  to  strike  out  the  words  in 
brackets  agreeably  to  a  vote  of  the  House,  but 
as  a  recognition  of  the  opinion  of  the  Senate 
the  proviso  was  inserted  which  modified  in 
substance  the  effect  of  the  words  stricken  out, 
under  the  lead  of  the  House,  only  in  this,  that 
the  Cabinet  officers  referred  to  in  the  body  of 
the  section  as  it  passed  the  House  were  to  hold 
their  offices  as  they  would  have  held  .them  if 
the  House  amendment  had  been  agreed  to 
without  condition,  with  this  exception:  that 
they  were  to  retire  from  their  offices  in  one 
month  after  the  end  of  the  term  of  the  Presi 
dent  by  whom  they  might  have  been  appointed 
to  office.  The  object  and  effect  of  this  quali 
fication  of  the  provision  for  which  the  House 
contended  was  to  avoid  fastening,  by  opera 
tion  of  law,  upon  an  incoming  President  the 
Cabinet  of  his  predecessor,  with  no  means  of 
relieving  himself  from  them  unless  the  Senate 
of  the  United  States  was  disposed  to  concur  in 
their  removal. 

In  short,  they  were  to  retire  by  operation  of 
law  at  the  end  of  one  month  after  the  expira- 


23 


tion  of  the  term  of  the  President  by  wh,ftm  they 
had  been  appointed ;  and  in  this  particular  their 
tenure  of  office  was  distinguished  by  the  pro 
viso  from  the  tenure  by  which  other  civil  offi 
cers  mentioned  in  the  body  of  the  section  were 
to  hold  their  offices,  and  their  tenure  of  office 
is  distinguished  in  no  other  particular. 

The  counsel  who  opened  the  cause  for  the 
President  was  pleased  to  read  from  the  Globe 
the  remarks  made  by  Mr.  SCHENCK  in  the 
House  of  Representatives,  when  the  report  of 
the  conference  committee  was  under  discussion. 
But  he  read  only  a  portion  of  the  remarks  of 
that  gentleman,  and  connected  with  them  obser 
vations  of  his  own,  by  which  he  may  have  led 
the  Senate  into  the  error  that  Mr.  SCHENCK 
entertained  the  opinion  as  to  the  effect  of  the 
proviso  which  is  now  urged  by  the  respondent ; 
but,  so  far  from  this  being  the  case,  the  state 
ment  made  by  Mr.  SCHENCK  to  the  Ho»se  is 
exactly  in  accordance  with  the  doctrine  now 
maintained  by  the  Managers  on  the  part  of  the 
House  of  Representatives.  After  Mr.  SCHENCK 
had  made  the  remarks  quoted  by  the  counsel 
for  the  respondent,  Mr.  Le  Blond,  of  Ohio,  rose  | 
and  said: 

"  I  would  like  to  inquire  of  the  gentleman  who  has 
charge  of  this  report  whether  it  becomes  necessary 
that  the  Senate  shall  concur  in  all  appointments  of 
executive  officers,  and  that  none  of  them  can  be  re 
moved  after  appointment  without  the  concurrence 
of  the  Senate?" 

Mr.  SCHENCK  says,  in  reply: 

"  That  is  the  case;  but  their  terms  of  office  is  lim 
ited,  (as  they  are  not  now  limited  by  law.)  so  that 
they  expire  with  the  term  of  service  of  the  President 
who  appoints  them,  and  one  month  after,  in  case  of 
death  or  other  accident,  until  others  can  be  substi 
tuted  for  them  by  the  incoming  President." 

Mr.  Le  Blond,  continuing,  said: 
"  I  understand,  then,  this  to  be  the  effect  of  the 
report  of  the  committee  of  conference  :  in  the  event 
of  the  President  finding  himself  with  a  Cabinet  offi 
cer  who  does  not  agree  with  him,  and  whom  he 
desires  to  remove,  he  cannot  do  so,  and  have  a  Cabi 
net  in  keeping  with  his  own  views,  unless  the  Senate 
shall  concur." 

To  this  Mr.  SCHENCK  replies : 

"  The  gentleman  certainly  does  not  need  that  in 
formation  from  me,  as  this  subject  has  been  fully 
debated  in  this  House." 

Mr.  Le  Blond  said,  finally: 
"Then   I  hope  tho  House  will  not  agree  to  the 
report  of  the  committee  of  conference." 

This  debate  in  the  House  shows  that  there 
was  there  and  then  no  difference  of  opinion 
between  Mr.  SCHENCK,  who  represented  the 
friends  of  the  bill,  aiid  Mr.  Le  Blond,  who 
represented  the  opponents  of  the  bill,  that  its  J 
effect  was  to  confirm  the  Secretaries  who  were  ' 
then  in  office  in  their  places  until  one  month  | 
after  the  expiration  of  Mr.  Lincoln's  term  of 
office,  to  wit,  the  4th  day  of  March,  1809,  un-  ! 
less,  upon  the  nomination  of  successors,  they  j 
should  be  removed  by  and  with  the  advice  and  j 
consent  of  the  Senate.     Nor  does  the  language  j 
used  by  the  honorable  Senator  from  Ohio,  who  j 
reported  the  result  of  the  conference  to  the  ! 
Senate,  justify  the  inference  which  has  been    I 
drawn  from  it  by  the  counsel  for  the  respond-  II 


ent.  The  charge  made  by  the  honorable  Sen 
ator  from  Wisconsin,  which  the  honorable 
Senator  from  Ohio  was  refuting,  seems  to  have 
been,  in  substance,  that  the  first  section  of  the 
bill  and  the  proviso  to  the  first  section  of  the 
bill  had  been  framed  with  special  reference  to 
Mr.  Johnson,  as  President,  and  to  the  existing 
condition  of  affairs.  In  response  to  this  the 
honorable  Senator  from  Ohio  said : 

"I  say  that  the  Senate  have  not  legislated  wtth  a 
view  to  any  persons  or  any  President,  and  therefore 
he  commences  by  asserting  what  is  not  true.  Wedo 
not  legislate  in  order  to  keep  in  the  Secretary  of  War, 
the  Secretary  of  the  Navy,  or  the  Secretary  of  State." 

It  will  be  observed  that  this  language  does 
not  indicate  the  opinion  of  the  honorable  Sen 
ator  as  to  the  effect  of  the  bill ;  but  it  is  only 
a  declaration  that  the  object  of  the  legislation 
was  not  that  which  had  been  intimated  or  al 
leged  by  the  honorable  Senator  from  Wiscon 
sin.  This  view  of  the  remarks  of  the  honor 
able  Senator  from  Ohio  is  confirmed  by  what 
he  afterward  said  in  reply  to  the  suggestion 
that  members  of  the  Cabinet  would  hold  their 
places  against  the  wishes  of  the  President, 
when  he  declares  that  undersuch  circumstances 
he,  as  a  Senator,  would  consent  to  their  re 
moval  at  any  time,  showing  most  clearly  that 
he  did  not  entertain  the  idea  that  under  the 
tenure- of- office  act  it  would  be  in  the  power  of 
the  President  to  remove  a  Cabinet  officer  with 
out  the  advice  and  consent  of  the  Senate.  And 
we  all  agree  that  in  ordinary  times,  and  under 
ordinary  circumstances,  it  would  not  only  be 
just  and  proper  for  a  Cabinet  officer  to  fender 
his  resignation  at  once,  upon  the  suggestion 
of  the  President  that  it  would  be  acceptable, 
but  we  also  agree  that  it  would  be  the  height 
of  personal  and  official  indecorum  if  he  were 
to  hesitate  for  a  moment  as  to  his  duty  in  that 
particular.  But  the  justification  of  Mr.  Stan- 
ton,  and  his  claim  to  the  gratitude  and  encoirf 
iums  of  his  countrymen,  is,  that  when  the 
nation  was  imperiled  by  the  usurpations  of  a 
criminally- minded  Chief  Magistrate,  he  as 
serted  his  constitutional  and  legal  rights  to  the 
office  of  Secretary  for  the  Department  of  War, 
and  thus  by  his  devotion  to  principle,  and  at 
great  personal  sacrifices,  he  has  done  more 
than  any  other  man  since  the  close  of  the  re 
bellion  to  protect  the  interests  and  maintain 
the  rights  of  the  people  of  the  country. 

But  the  strength  of  the  view  we  entertain 
of  the  meaning  and  scope  of  the  tenure-of 
office  act  is  nowhere  more  satisfactorily  dem 
onstrated  than  in  the  inconsistencies  of»the 
argument  which  has  been  presented  by  the 
learned  counsel  for  the  respondent  in  support 
of  the  President's  positions'  He  Says,  speak 
ing  of  the  first  section  of  the  act  regulating  the 
tenure  of  certain  civil  offices  : 

"  Here  is  a  section,  then,  the  body  of  which  applies 
to  all  civil  officers,  as  well  to  those  then  in  office  as 
to  those  who  should  thereafter  bo  appointed.  The 
body  of  ihis  section  containsadeclaratipn  thatevery 
such  officer  'is,'  that  is,  if  ho  is  now  in  office,  and 
'shall  be,'  that  is,  if  he  shall  hereafter  be  appointed 
to  ofiice.  entitled  to  hold  untilasuccessor  isappomted 


24 


ami  qujy.iiied  in  his  place.    That  is  the  body  of  the 
section.' 

This  language  of  the  eminent  counsel  is  not 
only  an  admission,  but  it  is  a  declaration  that 
the  Secretary  for  the  Department  of  War,  be 
ing  a  civil  officer,  as  is  elsewhere  admitted  in 
the  argument  of  the  counsel  for  the  respondent, 
is  included  in  and  covered  and  controlled  by 
the  language  of  the  body  of  this  section.  It 
is  a  further  admission  that  in  the  absence  of  the 
proviso  the  power  of  the  President  over  the 
Secretary  for  the  Department  of  War  would 
correspond  exactly  to  his  power  over  any  other 
civil  officer,  which  would  be  merely  the  power 
to  nominate  a  successor  whose  confirmation 
by  the  Senate,  and  appointment,  would  work 
the  removal  of  the  person  in  office.  When  the 
counsel  for  the  respondent,  proceeding  in  his 
argument,  enters  upon  an  examination  of  the 
proviso,  he  maintains  that  the  language  of  that 
proviso  does  not  include  the  Secretary  for  the 
Department  of  War.  If  he  is  not  included  in 
the  language  of  the  proviso,  then  upon  the  ad 
mission  of  the  counsel  he  is  included  in  the 
body  of  the  bill,  so  that  for  the  purposes  of 
this  investigation  and  trial  it  is  wholly  imma 
terial  whether  the  proviso  applies  to  him  or 
not.  If  the  proviso  does  not  apply  to  the  Sec 
retary  for  the  Department  of  War,  then  he 
holds  his  office,  as  in  the  body  of  the  section 
expressed,  until  removed  therefrom  by  and 
with  the  advice  and  consent  of  the  Senate.  If 
he  is  covered  by  the  language  of  the  proviso, 
then  a  limitation  is  fixed  to  his  office,  to  wit: 
that  it  is  to  expire  one  month  after  the  close 
of  the  term  of  the  President  by  whom  he  has 
been  appointed,  subject,  however,  to  previous 
removal  by  and  with  the  advice  and  consent 
of  the  Senate. 

I  have  already  considered  the  question  of 
intent  on  the  part  of  the  President,  and  main 
tained  that  in  the  willful  violation  of  the  law  he 
discloses  a  criminal  intent  which  cannot  be 
controlled  or  qualified  by  any  testimony  on  the 
part  of  the  respondent. 

The  counsel  for  the  respondent,  however, 
has  dwelt  so  much  at  length  on  the  question  of 
intent,  and  such  efforts  have  been  made  during 
the  trial  to  introduce  testimony  upon  this  point, 
that  1  am  justified  in  recurring  to  it  for  a  brief 
consideration  of  the  arguments  and  views  bear 
ing  upon  and  relating  to  that  question.  If  a 
law  passed  by  Congress  be  equivocal  or  am 
biguous  in  its  terms,  the  Executive,  being  called 
upon  to  administer  it,  may  apply  his  own  best 
judgment  to  the  difficulties  before  him,  or  he 
may  seek  counsel  from  his  official  advisers  or 
other  proper  persons  5  and  acting  thereupon, 
without  evil  intent  or  purpose,  he  would  be 
fully  justified,  and  upon  no  principle  of  right 
could  he  be  held  to  answer  as  for  a  misde 
meanor  in  office.  But  that  is  not  this  case. 
The  question  considered  by  Mr.  Johnson  did 
not  relate  to  the  meaning  of  the  tenure- of- 
office  act.  He  understood  perfectly  well  the 
intention  of  Congress,  and  he  admiiled  in  his 


veto  nAsage  that  that  intention  was  expressed 
with  surocient  clearness  to  enable  him  to  com 
prehend  and  state  it.  In  his  veto  message  of 
the  2d  of  March.  1867,  after  quoting  the  first 
section  of  the  bill  to  regulate  tho  tenure  of  cer 
tain  civil  offices,  he  says  : 

"In  effect  the  bill  provides  that  the  President  shall 
not  remove  from  their  places  any  civil  officers  whose 
terms  of  service  are  not  limited  by  law  without  the 
advice  andconsentof  the  Senate  of  the  United  States. 
The  bill,  in  this  respect,  conflicts,  in  my  judgment, 
with  the  Constitution  of  the  United  States." 

His  statement  of  the  meaning  of  the  bill 
relates  to  all  civil  officers,  to  the  members  of 
his  Cabinet  as  well  as  to  others,  and  is  a  declara 
tion  that,  under  that  bill,  if  it  became  a  law, 
none  of  those  officers  could  be  removed  without 
the  advice  and  consent  of  the  Senate.  He 
was,  therefore,  in  no  doubt  as  to  the  intention 
of  Congress  as  expressed  in  the  bill  submitted 
to  hi i*  for  his  consideration,  and  which  after 
ward  became  the  law  of  the  land.  He  said  to 
the  Senate,  "  If  you  pass  this  bill,  I  cannot 
remove  the  members  of  my  Cabinet."  The 
Senate  and  the  House  in  effect  said,  "  We  so 
intend,"  and  passed  the  bill  by  a  two-thirds 
majority.  There  was  then  no  misunderstand 
ing  as  to  the  meaning  or  intention  of  the  act. 
His  offense,  then,  is  not,  that  upon  an  examina 
tion  of  the  statute  he  misunderstood  its  mean 
ing  and  acted  upon  a  misinterpretation  of  its 
true  import,  but  that  understanding  its  mean 
ing  precisely  as  it  was  understood  by  the  Con 
gress  that  passed  the  law,  precisely  as  it  is 
understood  by  the  House  of  Representatives  to 
day,  precisely  as  it  is  presented  in  the  articles  of 
impeachment,  and  by  the  Managers  before  this 
Senate,  he,  upon  his  own  opinion  that  the  same 
was  unconstitutional,  deliberately,  willfully,  and 
intentionally  disregarded  it.  The  learned  coun 
sel  say  that  he  had  a  right  to  violate  this  law  for 
the  purpose  of  obtaining  a  judicial  determina 
tion.  This  we  deny.  The  constitutional  duty 
of  the  President  is  to  obey  and  execute  the 
laws.  He  has  no  authority  under  the  Constitu 
tion,  or  by  any  law,  to  enter  into  any  schemes 
or  plans  for  the  purpose  of  testing  the  validity 
of  the  laws  of  the  country,  either  judicially  or 
otherwise.  Every  law  of  Congress  may  be 
tested  in  the  courts,  but  it  is  not  made  the  duty 
of  any  person  to  so  test  the  laws.  It  is  not 
specially  the  right  of  any  person  to  so  test  the 
laws,  and  the  effort  is  particularly  offensive  in 
the  Chief  Magistrate  of  the  country  to  attempt 
by  any  process  to  annul,  set  aside;  or  defeat  the 
laws  which  by  his  oath  he  is  bound  to  execute. 
Nor  is  it  any  answer  to  say,  as  is  suggested  by 
the  counsel  for  the  respondent,  that  "there 
never  could  be  a  judicial  decision  that  a  law  is 
unconstitutional,  inasmuch  as  it  is  only  by  dis 
regarding  a  law  that  any  question  can  be  raised 
judicially  under  it."  If  this  be  true,  it  is  no 
misfortune.  But  the  opposite  theory,  that  it  is 
jj  the  duty  or  the  right  of  the  President  to  disre- 
I  j  gard  a  law  for  the  purpose  of  ascertaining  judi- 
•  cially  whether  he  has  a  right  to  violate  a  law, 
ii  is  abhorrent  to  every  just  principle  of  govern- 


25 


ment,  and  dangerous  in  the  highest  degree  to 
the  existence  of  free  institutions. 

But  his  alleged  purpose  to  test  the  law  in 
the  courts  is  shown  to  be  a  pretext  merely. 
Upon  his  own  theory  of  his  rights  he  could 
have  instituted  proceedings  by  information  in 
the  nature  of  a  quo  warranto  against  Mr.  Stan- 
ton  on  the  13th  of  January,  1868.  More  than 
three  months  have  passed,  and  he  has  done 
nothing  whatever.  When  by  Mr.  Stanton's 
action  Lorenzo  Thomas  was  under  arrest,  and 
proceedings  were  instituted  which  might  have 
tested  the  legality  of  the  tenure-of-office  act, 
Mr.  Cox,  the  President's  special  counsel, 
moved  to  have  the  proceedings  dismissed,  al 
though  Thomas  was  at  large  upon  his  own  re 
cognisance.  Can  anybody  believe  that  it  was 
Mr.  Johnson's  purpose  to  test  the  act  in  the 
courts?  But  the  respondent's  insincerity,  his 
duplicity,  is  shown  by  the  statement  which  he 
made  to  General  Sherman  in  January  last. 
Sherman  says,  "I  asked  him  why  lawyers 
could  not  make  a  case,  and  not  bring  me,  or 
an  officer,  into  the  controversy?  His  answer 
was,  '  that  it  was  found  impossible,  or  a  case 
could  not  be  made  up  ;'  '  but,'  said  he,  '  if  we 
can  bring  the  case  to  the  courts  it  would  not 
stand  half  an  hour.'  "  He  now  says  his  object 
was  to  test  the  case  in  the  courts.  To  Sher 
man  he  declares  that  a  case  could  not  be  made 
up,  but  if  one  could  be  made  up  the  law  would 
not  stand  half  an  hour.  When  a  case  was 
made  up  which  might  have  tested  the  law  he 
makes  haste  to  get  it  dismissed.  Did  ever 
audacity  and  duplicity  more  clearly  appear  in 
the  excuses  of  a  criminal? 

This  brief  argument  upon  the  question  of 
intent  seems  to  me  conclusive,  but  I  shall 
incidentally  refer  to  this  point  in  the  further 
progress  of  my  remarks. 

The  House  of  Representatives  does  not  de 
mand  the  conviction  of  Andrew  Johnson  un 
less  he  is  guilty  in  the  manner  charged  in  the 
articles  of  impeachment;  nor  does  the  House 
expect  the  Managers  to  seek  a  conviction  ex 
cept  upon  the  law  and  the  facts  considered  with 
judicial  impartiality.  But  I  am  obliged  to 
declare  that  I  have  no  capacity  to  understand 
those  processes  of  the  human  mind  by  which 
this  tribunal,  or  any  member  of  this  tribunal, 
can  doubt,  can  entertain  a  reasonable  doubt, 
that  Andrew  Johnson  is  guilty  of  high  misde 
meanors  in  office,  as  charged  in  each  of  the 
first  three  articles  exhibited  against  him  by  the 
House  of  Representatives. 

We  have  charged  and  proved  that  Andrew 


Johnson,  President  of  the  United  States,  issued 
an  order  in  writing  for  the  removal  of  Edwin 
M.  Stanton  from  the  office  of  Secretary  for  the 
Department  of  War  while  the  Senate  of  the 
United  States  was  in  session,  and  without  the 
advice  and  consent  of  the  Senate,  in  violation 
of  the  Constitution  of  the  United  States  and 
of  his  oath  of  office,  and  of  the  provisions  of 
an  act  passed  March  2,  1867,  entitled  "  An  act 
regulating  the  tenure  of  certain  civil  offices," 
and  that  he  did  this  with  intent  so  to  do  ;  and 
thereupon  we  demand  his  conviction  under  the 
first  of  the  articles  of  impeachment  exhibited 
against  him  by  the  House  of  Representatives. 
We  have  charged  and  proved  that  Andrew 
Johnson,  President  of  the  United  States,  vio 
lated  the  Constitution  and  his  oath  of  office 
in  issuing  an  order  for  the  removal  of  Edwin 
M.  Stanton  from  the  office  of  Secretary  for  the 
Department  of  War  during  the  session  of  the 
Senate,  and  without  the  advice  and  consent 
of  the  Senate,  and  this  without  reference  to 
the  tenure-of-office  act;  and  thereupon  we  de 
mand  his  conviction  under  the  first  of  the 
articles  of  impeachment  exhibited  against  him 
by  the  House  of  Representatives. 

We  have  charged  and  proved  that  Andrew 
Johnson,  President  of  the  United  States,  did 
issue  and  deliver  to  one  Lorenzo  Thomas  a 
letter  of  authority  in  writing  authorizing  and 
empowering  said  Thomas  to  act  as  Secretary 
of  War  ad  interim,  there  being  no  vacancy  in 
said  office,  and  this  while  the  Senate  of  the 
United  States  was  in  session,  and  without  the 
advice  and  consent  of  the  Senate,  in  violation 
of  the  Constitution  of  the  United  States,  of  his 
oath  of  office,  and  of  the  provisions  of  an  act 
entitled  ''An  act  regulating  the  tenure  of  cer- 
I  tain  civil  offices,"  and  all  this  with  the  intent 
so  to  do ;  and  thereupon  we  demand  his  con- 
1  viction  under  the  second  of  the  articles  of  im- 
j  peachment  exhibited  against  him  by  the  House 
of  Representatives. 

We  have  charged  and  proved  that  Andrew 
Johnson,  President  of  the  United  States,  in 
the  appointment  of  Lorenzo  Thomas  to  the 
office  of  Secretary  of  War  ad  interim,  acted 
without  authority  of  law  and  in  violation  of  the 
Constitution  and  of  his  oath  of  office  ;  and  this 
without  reference  to  the  tenure-of-office  act; 
and  thereupon  we  demand  his  conviction  un 
der  the  third  of  the  articles  of  impeachment 
exhibited  against  him  by  the  House  of  Repre 
sentatives. 

At  this  point  the  honorable  Manager  yielded 
for  an  adjournment. 


THURSDAY,  APRIL  23,  1868. 


Mr.  Manager  BOUTWELL  resumed  as  fol 
lows: 

Mr.   PRESIDENT,    SENATORS:     The  learned 
counsel  for  the  respondent  seems  to  have  in 
volved  himself  in  some  difficulty  concerning  the 
articles  which  he  terms  the  conspiracy  articles, 
being  articles  four,  five,  six,  and  seven.     The 
allegations  contained  in  articles  four  and  six  are 
laid  under  the  act  of  July  31, 1861,  known  as  the 
conspiracy  act.     The  remarks  of  the  learned 
counsel  seem  to  imply  that  articles  five  and  seven 
are  not  based  upcn  any  law  whatever.     In  this 
he  greatly  errs.     An  examination  of  articles 
four  and  five  shows  that  the  substantive  allega 
tion  is  the  same  in  each,  the  differences  being 
that  article  four  charges  the  conspiracy  with 
intent,  by  intimidation  and  threats,  unlawfully 
to  hinder  and  prevent  Edwin  M.  Stanton  from 
holding  the  office  of  Secretary  for  the  Depart 
ment  of  War.     The  persons  charged  are  the 
respondent  and  Lorenzo  Thomas.     And  it  is 
alleged  that  this  conspiracy  for  the  purpose 
set  forth  was  in  violation  of  the  Constitution 
of  the  United  States  and  of  the  provisions  of 
an  act  entitled  "  An  act  to  punish  certain  con 
spiracies,"  approved  July  31,  1861.     The  fifth 
article  charges  that  the  respondent  did  unlaw 
fully  conspire  with  one  Lorenzo  Thoraasr  and 
with  other  persons,  to  prevent  the  execution  of 
the  act  entitled  "An  act  regulating  the  ten 
ure  of  certain  civil  offices,"  and  that  in  pur 
suance  of  that  conspiracy  they  did  unlawfully 
attempt  to  prevent  Edwin   M.  Stanton  from 
holding  the  office  of  Secretary  for  the  Depart 
ment  of  War.     It  is  not  alleged  in  the  article 
that  this  conspiracy  is  against  any  particular 
law,  but  it  is  alleged  that  the  parties  charged 
did  unlawfully  conspire.    It  is  very  well  known 
that  conspiracies  are  of  two  kinds.     Two  or 
more  persons  may  conspire  to  do  a  lawful  act 
by  unlawful  means ;  or  two  or  more  persons 
may  conspire  to  do  an  unlawful  act  by  lawful 
means.     By  the  common  law  of  England  such 
conspiracies  have  always  been  indictable  and 
punishable  as  misdemeanors.     The  State  of 
Maryland  was   one   of   the   original  thirteen 
States  of  the  Union,  and  the  common  law  of 
England  has  always  prevailed  in -that  State, 
except  so  far  as  it  has  been  modified  by  statute. 
The  city  of  Washington  was  originally  within 
the  State  of  Maryland,  but  it  was  ceded  to  the 

26 


United  States  under  the  provisions  of  the  Con 
stitution.  By  a  statute  of  the  United  States, 
passed  February  27,  1801,  (Statutes-at-Large, 
vol.  2,  p.  103,)  it  is  provided: 

"That  the  laws  of  the  State  of  Maryland,  as  they 
now  exist,  shall  be  and  continue  in  force  in  that  part 
of  the  said  district  which  was  ceded  by  that  State  to 
the  United  States,  and  by  them  accepted  as  afore 
said." 

By  force  of  this  statute,  although  probably 
the  law  would  have  been  the  same  without 
legislation,  the  English  common  law  of  crimes 
prevails  in  the  city  of  Washington.  By  an 
other  statute  entitled  "An  act  for  the  punish 
ment  of  crimes  in  the  District  of  Columbia," 
(Statutes-at-Large,  vol.  4,  p.  450,)  approved 
March  2,  1831,  special  punishments  are  affixed 
to  various  crimes  enumerated  wheu  commit 
ted  in  the  District  of  Columbia.  But  con 
spiracy  is  not  one  of  the  crimes  mentioned. 
The  fifteenth  section  of  that  act  provides : 

"That  every  other  felony,  misdemeanor,  or  offense 
not  provided  for  by  this  act  may  and  shall  be  pun 
ished  as  heretofore,  except  that  in  all  cases  where 
whipping  is  part  or  the  whole  of  the  punishment, 
except  in  the  cases  of  slaves,  the  court  shall  substi 
tute  therefor  imprisonment  in  the  county  jail  for  a 
period  not  exceeding  six  months." 

And  the  sixteenth  section  declares — 
"That  all  definitions  and  descriptions  of  crimes, 
all  fines,  forfeitures,  and  incapacities,  the  restitution 
of  property,  or  the  payment  of  the  value  thereof,  and 
every  other  matter  not  provided  for  in  this  act,  be 
and  the  same  shall  remain  as  heretofore." 

There  can  then  be  no  doubt  that,  under  the 
English  common  law  of  crimes,  sanctioned  and 
continued  by  the  statutes  of  the  United  States 
in  the  District  of  Columbia,  the  fifth  and  sev 
enth  articles  set  forth  offenses  which  are  pun 
ishable  as  misdemeanors  by  the  laws  of  the 
District. 

Article  six  is  laid  under  the  statute  of  1861, 
and  charges  that  the  respondent  did  unlaw 
fully  conspire  with  Lorenzo  Thomas,  by  force, 
to  seize,  take,  and  possess  the  property  of  the 
United  States  in  the  Department  of  War,  and 
this  with  intent  to  violate  and  disregard  the 
act  entitled  "An  act  regulating  the  tenure  of 
certain  civil  offices."  The  words  used  in  the 
conspiracy  act  of  1861  leave  room  for  argu 
ment  upon  the  point  raised  by  the  learned 
counsel  for  the  respondent.  I  admit  that  the 
District  of  Columbia  is  not  included  by  spe 
cific  designation  ;  but  the  reasons  for  the  law 


27 


and  the  natural  interpretation  of  the  language 
justify  the  view  that  the  act  applies  to  the  Dis 
trict.  I  shall  refer  to  a  single  authority  only 
upon  the  point. 

The  internal-duties  act  of  August  2,  1813, 
(Statutes,  vol.  3,  p.  82)  subjects,  in  express 
terms,  the  u  several  Territories  of  the  United 
States  and  the  District  of  Columbia"  to  the 
payment  of  the  taxes  imposed ;  upon  which 
the  question  arose  whether  Congress  has  power 
to  impose  a  direct  tax  on  the  District  of  Co 
lumbia,  in  view  of  the  fact  that  by  the  Consti 
tution  it  is  provided  that  "  representation  and 
direct  taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within 
the  Union  according  to  their  respective  num 
bers." 

In  the  case  of  Loughborongh  vs.  Blake  the 
Supreme  Court  of  the  United  States  unani 
mously  decided,  in  a  brief  opinion  by  Chief 
Justice  Marshall,  that  although  the  language 
of  the  Constitution  apparently  excepts  the  Dis 
trict  of  Columbia  from  the  imposition  of  direct 
taxes,  yet  the  reason  of  the  thing  requires  us  to 
consider  the  District  as  being  comprehended, 
in  this  respect,  within  the  intention  of  the  Con 
stitution.  (Loughborough  vs.  Blake,  5  Whea- 
ton,  p.  317.) 

The  reasoning  of  the  Supreme  Court  and  its 
conclusion  in  this  case  were  satisfactory  to  the 
bar  and  the  country,  and  no  person  has  deemed 
it  worth  while  to  raise  the  question  anew  under 
the  direct  tax  act  of  August  5,  1861,  (Statutes 
12,  296,)  which  also  comprehends  the  Territo 
ries  and  the  District  of  Columbia. 

But  the  logical  rules  of  construction  applica 
ble  to  an  act  of  Congress  are  the  same  as  those 
applicable  to  the  Constitution.  An  act  of  Con 
gress  and  the  Constitution  are  both  laws — noth 
ing  more,  nothing  less — except  that  the  latter  is 
of  superior  authority.  And  if,  in  the  construc 
tion  of  the  Constitution,  it  may  be  satisfactorily 
maintained  that  the  District  of  Columbia  is  to 
be  deemed,  because  of  the  reason  of  things,  to 
be  comprehended  by  a  provision  of  the  Con 
stitution  which  in  words,  and  in  their  super 
ficial  construction,  excludes  it,  must  not  the 
same  rule  of  construction  produce  the  same 
result  in  the  determination  of  the  legal  intent 
and  import  of  an  act  of  Congress,  when  an 
obscurity  exists  in  the  latter  and  for  the  same 
cause? 

The  seventh  article  is  laid  upon  the  common 
law,  and  charges  substantially  the  same  offenses 
as  those  charged  in  the  sixth  article.  The  re 
sult  then  is  that  the  fifth  and  seventh  articles, 
which  are  based  upon  the  common  law,  set 
forth  substantially  the  same  offenses  which  are 
set  forth  in  the  fourth  and  sixth  articles,  which 
are  laid  upon  the  statute  of  July  31,  1861 ;  and 
as  there  can  bo  no  doubt  of  the  validity  of  the 
fifth  and  seventh  articles,  it  is  practically  im 
material  whether  the  suggestion  made  by  the 
counsel  lor  the  respondent,  that  the  conspiracy 
act  of  18G1  does  not  include  the  District  of 
Columbia,  is  a  valid  suggestion  or  not.  Not 


doubting  that  the  Senate  will  find  that  the 
charge  of  conspiracy  is  sufficiently  laid  under 
existing  laws  in  all  the  articles,  I  proceed  to 
an  examination  of  the  evidence  by  which  the 
charge  is  supported. 

It  should  always  be  borne  in  mind  that  the 
evidence  in  proof  of  conspiracy  will  generally, 
from  the  nature  of  the  crime,  be  circumstantial ; 
and  this  case  in  this  particular  is  no  exception 
to  the  usual  experience  in  criminal  trials.  We 
find,  in  the  first  place,  if  the  allegations  in  the 
first,  second,  and  third  articles  have  been 
established,  that  the  President  was  engaged  in 
an  unlawful  act.  If  we  find  Lorenzo  Thomas 
or  any  other  person  cooperating  with  him  upon 
an  agreement  or  an  understanding  or  an  assent 
on  the  part  of  such  other  person  to  the  prose 
cution  of  such  unlawful  undertaking  an  actual 
conspiracy  is  proved.  The  existence  of  the 
conspiracy  being  established,  it  is  then  compe 
tent  to  introduce  the  statements  and  acts  of  the 
parties  to  the  conspiracy,  made  and  done  while 
the  conspiracy  was  pending,  and  in  furtherance 
of  the  design ;  and  it  is  upon  this  ground  that 
testimony  has  been  offered  and  received  of  the 
declarations  made  by  Lorenzo  Thomas,  one  of 
the  parties  to  the  conspiracy,  subsequent  to  the 
18th  of  January,  1868,  or  perhaps  to  the  13th 
of  January,  1868 — the  day  on  which  he  was 
restored  to  the  office  of  Adjutant  General  of  the 
Army  of  the  United  States  by  the  action  of  the 
President,  and  which  appears  to  have  been  an 
initial  proceeding  on  his  part  for  the  purpose 
of  accomplishing  his  unlawful  design — the  re- 
motal  of  Mr.  Stanton  from  the  office  of  Secre 
tary  for  the  Department  of  War.  The  evidence 
of  agreement  between  the  respondent  and 
Thomas  is  found  in  the  order  of  the  21st  of 
February,  1868,  appointing  Thomas,  and  in  the 
conversation  which  occurred  at  the  time  the 
order  was  placed  in  Thomas's  hands.  The 
counsel  for  the  respondent  at  this  point  was 
involved  in  a  very  serious  difficulty.  If  he  had 
admitted  (which  he  took  care  not  to  do)  that 
the  order  was  purely  a  military  one,  he  foresaw 
that  the  respondent  would  be  involved  in  the 
crime  of  having  issued  a  military  order  which 
did  not  pass  through  the  General  of  the  Army, 
and  thus  would  bo  liable  to  impeachment  and 
removal  from  office  for  violating  the  law  of  the 
2d  of  March,  1867,  entitled  "An  act  making 
appropriations  for  the  support  of  the  Army  for 
the  fiscal  year  ending  June  30,  1868,  and  for 
other  purposes." 

If  he  had  declared  that  it  was  not  a  military 
order,  then  the  transaction  confessedly  was  in 
the  nature  of  an  agreement  between  the  Pres 
ident  and  Lorenzo  Thomas ;  and  if  the  act  con 
templated  by  that  agreement  was  an  unlawful 
act,  or  if  the  act  were  unlawful,  and  the  means 
employed  for  accomplishing  it  were  unlawful, 
then  clearly  the  charge  of  conspiracy  would  be 
maintained.  Hence  he  was  careful  to  say,  in 
denying  that  the  order  was  a  military  order, 
that  it  nevertheless  "invoked  that  spirit  of  mil 
itary  obedience  which  constitutes  the  strength 


28 


of  the  service."  And  farther,  he  says  of 
Thomas,  that,  as  a  faithful  Adjutant  General 
of  the  Army  of  the  United  States,  interested 
personally,  professionally,  and  patriotically  to 
have  the  office  of  Secretary  of  the  Department 
of  War  performed  in  a  temporary  vacancy,  was 
it  not  his  duty  to  accept  the  appointment  un 
less  he  knew  that  it  was  unlawful  to  accept  it? 
The  admissions  and  statements  of  the  learned 
counsel  are  to  the  effect,  on  the  whole,  that 
the  order  was  not  a  military  order,  nor  do  we 
claim  that  it  was  a  military  order,  but  it  was  a 
letter  addressed  to  General  Thomas,  which  he 
could  have  declined  altogether  without  sub 
jecting  himself  to  any  punishment  by  a  mili 
tary  tribunal.  This  is  the  crucial  test  of  the 
character  of  the  paper  which  he  received,  and 
on  which  he  proceeded  to  act.  Ignorance  of 
the  law,  according  to  the  old  maxim,  excuses 
no  man ;  and  whether  General  Thomas,  at  the 
first  interview  he  had  with  the  President  on  the 
18th  of  January,  1808,  or  at  his  interview  with 
him  on  the  day  when  he  received  the  letter  of 
appointment,  knew  that  the  President  was  then 
engaged  in  an  unlawful  act,  is  not  material  to 
thia  inquiry.  The  President  knew  that  his 
purpose  was  an  unlawful  one,  and  he  then  and 
there  induced  General  Thomas  to  cooperate 
with  him  in  the  prosecution  of  the  unlawful 
design.  If  General  Thomas  was  ignorant  of 
the  illegal  nature  of  the  transaction,  that  fact 
furnishes  no  legal  defense  for  him,  even  though 
morally  it  might  be  an  excuse  for  his  conduct. 
Bat  certainly  the  President,  who  did  know  the 
illegal  nature  of  the  proceeding,  cannot  excuse 
himself  by  asserting  that  his  coconspirator  was 
at  the  time  ignorant  of  the  illegal  nature  of  the 
business  in  which  they  were  engaged. 

It  being  proved  that  the  respondent  was  en 
gaged  in  an  unlawful  undertaking  in  his  attempt 
to  remove  Mr.  Stanton  from  the  office  of  Sec 
retary  for  the  Department  of  War,  that  by  an 
agreement  or  understanding  between  General 
Thomas  and  himself  they  were  to  cooperate  in 
carrying  this  purpose  into  execution,  and  it 
being  proved,  also,  that  the  purpose  itself  was 
unlawful,  all  the  elements  of  a  conspiracy  are 
fully  established  ;  and  it  only  remains  to  ex 
amine  the  testimony  in  order  that  the  nature 
of  the  conspiracy  may  more  clearly  appear 
and  the  means  by  which  the  purpose  was 
to  be  accomplished  may  be  more  fully  under 
stood. 

The  statement  of  the  President  in  his  mes 
sage  to  the  Senate  under  date  of  12th  of  De 
cember,  18G7,  discloses  the  depth  of  his  feel 
ing  and  the  intensity  of  his  purpose  in  regard 
to  the  removal  of  Mr.  Stanton.  In  that  mes 
sage  he  speaks  of  the  bill  regulating  the  tenure 
of  certain  civil  offices  at  the  time  it  was  before 
him  for  consideration.  He  says: 

"The  bill  had  not  then  become  a  law;  the  limit 
ation  upon  the  power  of  removal  was  not  yet  im 
posed,  and  there  was  yet  time  to  make  any  changes. 
If  any  one  of  those  gentlemen  [meaning:  .the  mem 
bers  of  his  Cabinet]  had  then  said  to  me  that  he 
would  avail  himself  of  the  provisions  of  that  bill  in 


case  it  became  a  law  I  should  not  have  hesitated  a 
moment  as  to  his  removal." 

When,  in  the  summer  of  1867,  the  respond 
ent  became  satisfied  that  Mr.  Stanton  not  only 
did  not  enter  into  the  President's  schemes  but 
was  opposed  to  them,  and  he  determined  upon 
his  suspension  and  final  removal  from  the  office 
of  Secretary  for  the  Department  of  War,  he 
knew  well  that  the  confidence  of  the  people  in 
Mr.  Stanton  was  very  great,  and  that  they 
would  not  accept  his  removal  and  an  appoint 
ment  to  that  important  place  of  any  person  of 
doubtful  position,  or  whose  qualifications  were 
not  known  to  the  country.  Hence  he  sought, 
through  the  suspension  of  Mr.  Stanton  and'the 
appointment  of  General  Grant  as  Secretary  of 
War  ad  interim,  to  satisfy  the  country  for  the 
moment,  but  with  the  design  to  prepare  the 
way  thereby  for  the  introduction  into  the  War 
Department  of  one  of  his  own  creatures.  At 
that  time  it  was  supposed  that  the  suspension 
of  Mr.  Stanton  and  the  appointment  of  Gen 
eral  Grant  were  made  under  and  by  virtue  of 
the  act  regulating  the  tenure  of  certain  civil 
offices;  and  although  the  conduct  of  the  Presi 
dent  during  a  period  of  nearly  six  months  in 
reference  to  that  office  was  in  conformity  to 
the  provisions  of  that  act,  it  was  finally  de 
clared  by  him  that  what  he  had  done  had  been 
done  in  conformity  to  the  general  power  which 
he  claims  under  the  Constitution,  and  that  he 
did  not  in  any  way  recognize  the  act  as  con 
stitutional  or  binding  upon  him.  His  message 
to  the  Senate  of  the  12th  of  December  was 
framed  apparently  in  obedience  to  the  tenure- 
of-office  act.  He  charged  Mr.  Stanton  with 
misconduct  in  office,  which,  by  that  act,  had 
been  made  a  ground  for  the  suspension  of  a 
civil  officer;  he  furnished  reasons  and  evidence 
of  misconduct  which,  as  he  alleged,  had  been 
satisfactory  to  him,  and  he  furnished  such  rea 
sons  and  evidence  within  twenty  days  after  the 
meeting  of  the  Senate  next  following  the  day 
of  suspension. 

All  this  was  in  conformity  to  the  statute  of 
March  2,  1867.  The  Senate  proceeded  to  con 
sider  the  evidence  and  reasons  furnished  by  the 
President,  and  in  conformity  to  that  act  passed 
a  resolution,  adopted  on  the  13th  of  January, 
1868,  declaring  that  the  reasons  were  unsatis 
factory  to  the  Senate,  and  that  Mr.  Stanton 
was  restored  to  the  office  of  Secretary  for  the 
Department  of  War.  Up  to  that  time  there 
had  been  no  official  statement  or  declaration 
by  the  President  that  he  had  not  acted  under 
the  tenure-of-office  act ;  but  he  now  assumed 
that  that  act  had  no  binding  force,  and  that  Mr. 
Stanton  was  not  lawfully  restored  to  the  office 
of  Secretary  for  the  Department  of  War. 

Upon  the  adoption  of  the  resolution  by  the 
Senate  General  Grant  at  once  surrendered  the 
office  to  Mr.  Stanton.  This  act  upon  his  part 
filled  the  President  with  indignation  toward 
both  General  Grant  and  Mr.  Stanton,  and  from 
that  day  he  seems  to  have  been  under  the  influ 
ence  of  a  settled  and  criminal  purpose  to  de- 


29 


stroy  General  Grant  and  to  secure  the  removal 
of  Mr.  Stanton.  During  the  month  following 
the  restoration  of  Mr.  Stanton  the  President 
attempted  to  carry  out  his  purpose  by  various 
and  tortuous  methods.  First  he  endeavored 
to  secure  the  support  of  General  Sherman.  On 
two  occasions,  as  is  testified  by  General  Sher 
man,  on  the  27th  and  31st  of  January,  he  ten 
dered  him  the  position  of  Secretary  of  War  ad 
interim.  It  occurred  very  naturally  to  General 
Sherman  to  inquire  of  the  President  whether 
Mr.  Stanton  would  retire  voluntarily  from  the 
office  ;  and  also  to  ask  the  President  what  he 
was  to  do,  and  whether  he  would  resort  to  force 
if  Mr.  Stanton  would  not  yield.  The  Presi 
dent  answered,  "Oh,  he  will  make  no  objec 
tion  ;  you  present  the  order  and  he  will  retire." 
Upon  a  doubt  being  expressed  by  General 
Sherman,  the  President  remarked,  u  I  know 
him  better  than  you  do  ;  he  is  cowardly."  The 
President  knew  Mr.  Stanton  too  well  to  enter 
tain  any  such  opinion  of  his  courage  as  he  gave 
in  his  answer  to  General  Sherman ;  the  secret 
of  the  proceeding,  undoubtedly,  was  this :  he 
desired  in  the  first  place  to  induce  General 
Sherman  to  accept  the  office  of  Secretary  of 
War  ad  interim  upon  the  assurance  on  his  part 
that  Mr.  Stanton  would  retire  willingly  from 
his  position,  trusting  that  when  General  Sher 
man  was  appointed  to  and  had  accepted  the 
place  of  Secretary  of  War  ad  interim  he  could 
be  induced,  either  upon  the  suggestion  of  the 
President  or  under  the  influence  of  a  natural 
disinclination  on  his  part  to  fail  in  the  accom 
plishment  of  anything  which  he  had  undertaken, 
to  seize  the  War  Department  by  force.  The 
President  very  well  knew  that  if  General  Sher 
man  accepted  the  office  of  Secretary  of  VVar 
ad  interim  he  would  be  ready  at  the  earliest 
moment  to  relinquish  it  into  the  hands  of  the 
President,  and  thus  he  hoped  through  the 
agency  of  General  Sherman  to  secure  the 
possession  of  the  Department  for  one  of  his 
favorites. 

During  the  period  from  the  13th  day  of  Jan 
uary  to  the  21st  of  February  he  made  an  at 
tempt  to  enlist  General  George  H.  Thomas  in 
the  same  unlawful  undertaking.  Here,  also, 
he  was  disappointed.  Thus  it  is  seen  that  from 
August  last,  the  time  when  he  entered  system 
atically  upon  his  purpose  to  remove  Mr. 
Stanton  from  the  office  of  Secretary  for  the 
Department  of  War,  he  has  attempted  to  se 
cure  the  purpose  he  had  in  view  through  the 
personal  influence  and  services  of  the  three 
principal  officers  of  the  Army ;  and  that  he  has 
met  with  disappointment  in  each  case.  Under 
these  circumstances  nothing  remained  for  the 
respondent  but  to  seize  the  office  by  an  open, 
willful,  defiant  violation  of  law;  and  as  it  was 
necessary  for  the  accomplishment  of  his  pur 
pose  that  he  should  obtain  the  support  of  some 
one,  and  as  his  experience  had  satisfied  him 
that  no  person  of  capacity  or  respectability  or 
patriotism  would  unite  with  him  in  his  unlaw 
ful  enterprise,  he  sought  the  assistance  and  aid 


of  Lorenzo  Thomas.  This  man,  as  you  have 
seen  him,  is  an  old  man,  a  broken  man,  a  vain 
man,  a  weak  man,  utterly  incapable  of  per 
forming  any  important  public  service  in  a 
manner  creditable  to  the  country  ;  but  possess 
ing,  nevertheless,  all  the  qualities  and  charac 
teristics  of  a  subservient  instrument  and  tool 
of  an  ambitious,  unscrupulous  man.  He  readily 
accepted  the  place  which  the  President  offered 
him,  and  there  is  no  doubt  that  the  declara 
tions  which  he  made  to  Wilkeson,  BURLEIGH, 
and  Karsner  were  made  when  he  entertained 
the  purpose  of  executing  them,  and  made  also 
in  the  belief  that  they  were  entirely  justified  by 
the  orders  which  he  had  received  from  the 
President,  and  that  the  execution  of  his  pur 
pose  to  seize  the  War  Department  by  force 
would  be  acceptable  to  the  President.  That 
he  threatened  to  use  force  there  is  no  doubt 
from  the  testimony,  and  he  has  himself  con 
fessed  substantially  the  truth  of  the  statements 
made  by  all  the  witnesses  for  the  prosecution 
who  have  testified  to  that  fact. 

These  statements  were  made  by  Thomas  on 
and  after  the  21st  of  February,  when  he  re 
ceived  his  letter  of  authority,  in  writing,  to  take 
possession  of  the  War  Department.  The  agree 
ment  between  the  President  and  Thomas  was 
consummated  on  that  day.  With  one  mind 
they  were  then  and  on  subsequent  days  engaged 
and  up  to  the  present  time  they  are  engaged  in 
the  attempt  to  get  possession  of  the  War  De 
partment.  Mr.  Stanton,  as  the  Senate  by  its 
resolution  has  declared,  being  the  lawful  Sec 
retary  of  War,  this  proceeding  on  their  part 
was  an  unlawful  proceeding.  It  had  in  view 
an  unlawful  purpose ;  it  was  therefore  in  con 
templation  of  the  law  a  conspiracy,  and  the 
President  is  consequently  bound  by  the  decla 
rations  made  by  Thomas  in  regard  to  taking 
possession  of  the  War  Department  by  force.  • 
Thomas  admits  that  on  the  night  of  the  21st  it 
was  his  purpose  to  use  force  ;  but  on  the  morn 
ing  of  the  22d  his  mind  had  undergone  a  change 
and  he  then  resolved  not  to  use  force.  _  We  do 
not  know  precisely,  the  hour  when  his  mind 
underwent  this  change,  but  the  evidence  dis 
closes  that  upon  his  return  from  the  supreme 
court  of  the  District,  where  he  had  been  ar 
raigned  upon  a  complaint  made  by  Mr.  Stan- 
ton,  which,  according  to  the  testimony,  was 
twelve  o'clock  or  thereabouts,  he  had  an  inter 
view  with  the  President;  and  it  is  also  in  evi 
dence  that  at  or  about  the  same  time  the  Pres 
ident  had  an  interview  with  General  Emory, 
from  whom  he  learned  that  that  officer  would 
not  obey  a  command  of  the  President  unless 
it  passed  through  General  Grant,  as  required 
by  law. 

The  President  understood  perfectly  well  that 
he  could  neither  obtain  force  from  General 
Grant  nor  transmit  an  order  through  General 
Grant  for  the  accomplishment  of  a  purpose 
manifestly  unlawful;  and  inasmuch  as  General 
Emory  had  indicated  to  him  in  the  most  dis 
tinct  and  emphatic  manner  his  opinion  that 


30 


the  law  requiring  all  orders  to  pass  through 
the  headquarters  of  the  General  commanding 
was  constitutional,  indicating  also  his  purpose 
to  obey  the  law,  it  was  apparent  that  at  that 
moment  the  President  could  have  had  no  hope 
of  obtaining  possession  of  the  Department  of 
War  by  force.  It  is  a  singular  coincidence  in 
the  history  of  this  case  that  at  or  about  the 
same  time  General  Thomas  had  an  interview 
with  the  President  and  came  to  the  conclusion 
that  it  would  not  be  wise  to  resort  to  force. 

The  President  has  sought  to  show  his  good 
intention  by  the  fact  that,  on  the  22d  or  the 
24th  of  February,  he  nominated  Hon.  Thomas 
Ewing,  senior,  as  Secretary  for  the  Department 
of  War.  Mr.  Ewing  is  not  an  unknown  man. 
He  has  been  a  member  of  the  Senate  and  the 
head  of  the  Treasury  Department.  His  abil 
ities  are  undoubted,  but  at  the  time  of  his  nom 
ination  he  was  in  the  seventy-ninth  year  of  his 
age.  and  there  was  no  probability  that  he  would 
hold  the  office  a  moment  longer  than  his  sense 
of  public  duty  required.  It  was  the  old  game 
of  the  President — the  office  in  the  hands  of  his 
own  tool  or  in  the  hands  of  a  man  who  would 
gladly  vacate  it  at  any  moment.  This  was  the 
necessity  of  his  position,  and  throws  light  upon 
that  part  of  his  crime  which  is  set  forth  in  the 
eleventh  article. 

For,  in  fact,  his  crime  is  one — the  subversion 
of  the  Government.  From  the  nature  of  the 
case  we  are  compelled  to  deal  with  minor  acts 
of  criminality  by  which  he  hoped  to  consum 
mate  this  greatest  of  crimes. 

In  obedience  to  this  necessity  he  appointed 
Grant,  hoping  to  use  him  and  his  influence  with 
the  Army,  and  failing  in  this,  to  get  possession 
of  the  place  and  fill  it  with  one  of  his  own 
satellites.  Foiled  and  disappointed  in  this 
scheme,  he  sought  to  use,  first,  General  Sher 
man,  then  General  George  H.  Thomas,  then 
Hon.  Thomas  Ewing,  senior,  knowing  that 
neither  of  these  gentlemen  would  retain  the 
office  for  any  length  of  time.  There  were  men 
in  the  country  who  would  have  accepted  the 
office  and  continued  in  it  and  obeyed  the  Con 
stitution  and  the  laws.  Has  he  named  any  such 
person ;  has  he  suggested  any  such  person  ? 
His  appointments  and  suggestions  of  appoint 
ments  have  been  of  two  sorts — honorable  men, 
who  would  not  continue  in  the  office,  or  dis 
honorable,  worthless  men,  who  were  not  fit  to 
hold  the  office. 

The  name  of  General  Cox,  of  Ohio,  was 
mentioned  in  the  public  journals  ;  it  was  men 
tioned,  probably,  to  the  President.  Did  it  meet 
with  iavor?  Did  he  send  his  name  to  the 
Senate  ?  No. 

General  Cox,  if  he  had  accepted  the  office 
at  all,  would  have  done  so  with  the  expecta 
tion  of  holding  it  till  March,  1869,  and  with 
the  purpose  of  executing  the  duties  of  the 
trust  according  to  the  laws  and  the  Constitu 
tion.  These  were  purposes  wholly  inconsist 
ent  with  the  President's  schemes  of  usurpa 
tion.  But  is  it  to  be  presumed  or  imagined 


that  when  the  President  issued  his  order  for 
the  removal  of  Mr.  Stanton,  and  his  letter  of 
authority  to  Lorenzo  Thomas,  on  the  21st  of 
February,  he  had  any  purpose  of  appointing 
Mr.  Ewing  Secretary  of  War?  Certainly  not. 
On  the  afternoon  of  the  21st  he  informs  his 
Cabinet  that  Stantou  was  removed  and  that 
Thomas  had  possession  of  the  office.  He  then 
so  believed.  Thomas  had  deceived  or  misled 
him.  On  the  22d  instant  he  had  discovered 
that  Stanton  held  on  to  the  place,  and  that 
Emory  could  not  be  relied  upon  for  force. 

What  was  now  his  necessity?  Simply  a 
resort  to  his  old  policy.  He  saw  that  it  was 
necessary  to  avoid  impeachment  if  possible, 
and  also  to  obtain  the  sanction  of  the  Senate 
to  a  nomination  which  would  work  the  re 
moval  of  Mr.  Stanton,  and  thus  he  would  tri 
umph  over  his  enemies  and  obtain  condona 
tion  for  his  crimes  of  the  21st  of  February. 
A  well-laid  scheme,  but  destined  to  fail  and  to 
furnish  evidence  of  his  own  guilty  purposes. 
With  the  office  in  the  possession  of  Mr.  Ewing 
he  foresaw  that  for  the  prosecution  of  his  own 
plans  the  place  would  always  be  vacant. 

Thus  has  this  artful  man  pursued  the  great 
purpose  of  his  life.  Consider  the  other  cir 
cumstances.  On  the  1st  of  September  last 
General  Emory  was  appointed  to  the  com 
mand  of  the  department  of  Washington.  He 
has  exhibited  such  sterling  honesty  and  vig 
orous  patriotism  in  these  recent  troubles  and 
during  the  war  that  he  can  bear  a  reference  to 
his  previous  history.  He  was  born  in  Mary 
land,  and  in  the  early  part  of  the  war  the  pub 
lic  mind  of  the  North  questioned  his  fidelity 
to  the  Union.  His  great  services  and  untarn 
ished  record  during  the  war  are  a  complete 
defense  against  all  suspicion,  but  is  it  too  much 
to  believe  that  Mr.  Johnson  entertained  the 
hope  that  General  Emory  might  be  made  an 
instrument  of  his  ambition  ?  Nobly  has  Gen 
eral  Emory  undeceived  the  President  and  gained 
additional  renown  in  the  country.  In  General 
Lorenzo  Thomas  the  President  was  not  de 
ceived.  His  complicity  in  recent  unlawful  pro 
ceedings  justifies  the  suspicions  entertained  by 
the  country  in  1861  and  1862  touching  his  loy 
alty.  Thomas  and  the  President  are  in  accord. 
In  case  of  the  acquittal  of  the  President,  they 
are  to  issue  an  order  to  General  Grant  putting 
Thomas  in  possession  of  the  reports  of  the  Army 
to  the  War  Department. 

Is  there  not  in  all  this  evidence  of  the  Presi 
dent's  criminal  intention?  Is  not  his  whole 
course  marked  by  duplicity,  deception,  and 
fraud?  "  All  things  are  construed  against  the 
wrong-doer"  is  the  wise  and  just  maxim  of 
the  law.  Has  he  not  trifled  with  and  deceived 
the  Senate?  Has  he  not  attempted  to  accom 
plish  an  unlawful  purpose  by  disingenuous, 
tortuous,  criminal  means  ?  His  criminal  intent 
is  in  his  willful  violation  of  the  law,  and  his 
criminalintentis,  moreover,  abundantly  proved 
by  all  the  circumstances  attending  the  violation 
of  the  law. 


31 


His  final  resort  for  safety  was  the  Senate, 
praying  for  the  confirmation  of  Mr.  Ewing. 
Ou  the  21st  of  February  he  hoped  that  Stan- 
ton  would  yield  willingly  or  that  Emory  could 
be  used  to  remove  him.  On  the  22d  he  knew 
that  Stunton  was  determined  to  remain,  that 
Emory  would  not  furnish  assistance,  that  it 
was  useless  to  appeal  to  Grant.  He  returns  to 
his  old  plan  of  tilling  the  War  Office  by  the 
appointment  of  a  man  who  would  yield  the 
place  at  any  moment;  and  now  he  asks,  you  to 
accept  as  his  justification  an  act  which  was  the 
last  resort  of  a  criminal  attempting  to  escape 
the  judgment  due  to  his  crimes.  Upon  this 
view  of  the  law  and  the  facts  we  demand  a 
conviction  of  the  respondent  upon  articles 
four,  five,  six,  and  seven  exhibited  against  him 
by  the  House  of  Representatives. 

The  evidence  introduced  tending  to  show  a 
conspiracy  between  Johnson  and  Thomas  to 
get  possession  of  the  War  Department  tends 
also,  connected  with  other  facts,  to  show  the 
purpose  of  the  President  to  obtain  possession 
of  the  Treasury  Department.  Bearing  in  mind 
his  claim  that  he  can  suspend  or  remove  from 
office,  without  the  advice  and  consent  of  the 
Senate,  any  civil  officer,  and  bearing  in  inind, 
also,  that  the  present  Secretary  of  the  Treasury 
supports  this  claim,  and  every  obstacle  to  the 
possession  of  the  Treasury  Department  is  re 
moved.  If  the  Secretary  should  decline  to 
cooperate  it  would  only  be  necessary  for  the 
President  to  remove  him  from  office  and  place 
the  Treasury  Department  in  the  hands  of  one 
of  his  own  creatures. 

Upon  the  appointment  of  Thomas  as  Secre 
tary  of  War  ad  interim  the  President  caused 
notice  to  be  given  thereof  to  the  Secretary  of 
the  Treasury,  accompanied  with  the  direction, 
under  the  President's  own  hand,  to  that  offi 
cer  to  govern  himself  accordingly.  It  is  also 
proved  that  on  the  22d  day  of  December  Mr. 
Johnson  appointed  Mr.  Cooper,  who  had  been 
his  Private  Secretary  and  intimate  friend,  As 
sistant  Secretary  of  the  Treasury. 

The  evidence  fully  sustains  the  statements 
made  in  the  opening  argument  of  Manager 
BUTLER  in  support  of  article  nine.  The  facts 
in  regard  to  General  Emory's  interview  with 
the  President  were  then  well  known  to  the 
Managers,  and  the  argument  and  view  pre 
sented  in  the  opening  contain  all  that  is  neces 
sary  to  be  said  upon  that  article. 

The  learned  counsel  who  opened  the  case 
for  the  President  seems  not  to  have  compre 
hended  the  nature  of  the  offense  set  forth  in 
the  tenth  article.  His  remarks  upon  that  arti 
cle  proceeded  upon  the  idea  that  the  House  of 
Representatives  arraign  the  President  for  slan 
dering  or  libeling  the  Congress  of  the  United 
States;  no  such  offense  is  charged,  nor  is  it 
claimed  by  the  Managers  that  it  would  be  pos 
sible  for  Mr.  Johnson  or  any  other  person  to 
libel  or  slander  the  Government.  It  is  for  no 
purpose  of  protection  or  inc  enmity  or  punish 
ment  that  we  arraign  Mr.  Johnson  for  words 


spoken  in  Washington,  Cleveland,  and  St. 
L6uis.  We  do  not  arraign  him  for  the  words 
spoken ;  but  the  charge  in  substance  is,  thajt  a 
man  who  could  utter  the  words  which  as  is 
proved  were  uttered  by  him  is  unfit  for  the 
office  he  holds.  We  claim  that  the  common 
law  of  crimes,  as  understood  and  enforced  by 
Parliament  in  cases  of  impeachment,  is  in  sub 
stance  this:  That  no  person  in  office  shall  do 
any  act  contrary  to  the  good  morals  of  the 
office  ;  and  that,  when  any  officer  is  guilty  of 
an  act  contrary  to  the  good  morals  of  the  office 
which  he  holds,  that  act  is  a  misdemeanor  for 
the  purpose  of  impeachment  and  removal  from 
office. 

Judge  Chase  was  impeached  and  escaped 
conviction  by  four  votes  only  for  words  spoken 
from  the  bench  of  the  circuit  court  sitting  in 
Baltimore ;  words  which  are  decorous  and  rep 
utable  when  compared  with  the  utterances  of 
Mr.  Johnson.  Judge  Humphreys  was  convicted 
and  removed  from  office  for  words  spoken 
treasonable  in  character,  but  not  as  much  cal 
culated  to  weaken  and  bring  the  Government 
of  the  United  States  into  contempt  as  were 
the  words  uttered  by  Mr.  Johnson  in  his  speech 
of  the  18th  of  August,  1866.  Judge  Hum 
phreys  was  convicted  by  the  unanimous  vote 
of  the  Senators,  nineteen  of  whom  now  sit  on 
this  trial.  If  a  magistrate  can  ever  be  guilty, 
for  words  spoken,  of  an  impeachable  misde 
meanor,  there  can  be  no  doubt  that  Mr.  John 
son  is  so  guilty. 

I  ask  you  to  consider  in  comparison,  or  in 
contrast,  the  nature  of  the  language  used  by 
Chase,  Humphreys,  and  Johnson,  as  set  forth, 
in  the  articles  of  impeachment  preferred  in  the 
several  cases. 

The  eighth  article  in  the  case  of  Chase  is  in 
these  words : 

"And  whereas  mutual  respect  and  confidence  be 
tween  the  Government  of  the  United  States  and  those 
of  the  individual  States,  and  between  the  people  and 
those  governments,  respectively,  are  highly  condu 
cive  to  that  public  harmony  without  which  there  can 
be  no  public  happiness,  yet  the  said  Samuel  Chase, 
disregarding  the  duties  and  dignity  of  his  judicial 
character,  did,  at  the  circuit  court  for  the  district  of 
Maryland,  held  at  Baltimore  in  the  month  of  M;:y, 
1803,  pervert  his  official  right  and  duty  to  address  the 
grand  jury  then  and-there  assembled  on  the  matters 
coming  within  the  province  of  the  said  jury,  for  the 
purpose  of  delivering  to  the  said  grand  jury  an  in 
temperate  and  inflammatory  political  harangue,  with 
intent  to  excite  the  fears  and  resentment  of  the  said 
grand  jury  and  of  the  good  people  of  Maryland 
against  their  State  government  and  constitution,  a 
conduct  highly  censurable  in  any,  but  peculiarly  in 
decent  and  unbecoming  in  a  judge  of  the  Supreme 
Court  of  the  United  States;  and,  moreover,  that 
the  said  Samuel  Chase,  then  and  there,  under  pre 
tence  of  exercising  his  judicial  right  to  address  f  ho 
said  grand  jury  as  aforesaid,  did, in  a  manner  highly 
unwarrantable,  endeavor  to  excite  the  odium  of  the 
said  grand  jury  and  of  the  good  people  of  Maryland 
against  the  Government  of  the  United  States,  by  de 
livering  opinions  which,  even  if  the  judiciary  were 
competent  to  their  expression  on  a  suitable  occasion 
and  in  a  proper  manner,  were  at  that  time,  and  as 
delivered  by  him,  highly  indecent,  extra-judicial,  and 
tending  to  prostitute  the  high  judicial  character  with 
which  he  was  invested  to  the  low  purpose  of  an  elec 
tioneering  partisan." 


32 


The  first  article  against  Humphreys  was  as 
follows : 

"That,  regardless  of  his  duties  as  a  citizen  of  the 
United  States,  and  unmindful  of  the  duties  ot  his  said 
oftice,  and  in  violation  of  the  sacred  obligation  of  his 
otlicial  oath,  '  to  administer  justice  without  respect 
to  persons,;  'and  faithfully  and  impartially  discharge 
all  the  duties  incumbent  upon  him  as  judge  of  the 
district  court  of  the  United  States  for  the  several  dis 
tricts  of  the  State  of  Tennessee,  agreeable  to  the  Con 
stitution  and  laws  of  the  United  States,'  the  said 
West  II.  Humphreys,  on  the  29th  day  of  December, 
A.  D.  I860,  in  the  city  of  Nashville,  in  said  State,  the 
said  West  II.  Humphreys  then  being  a  citizen  of  the 
United  States,  and  owing  allegiance  thereto,  and 
then  and  there  being  judge  of  the  district  court  of 
the  United  States  for  theseveral  districts  of  said  State, 
at  a  public  meeting  on  the  day  and  year  last  afore 
said,  held  in  said  city  of  Nashville,  and  in  the  hear 
ing  of  divers  persons  then  and  there  present,  did  en 
deavor  by  public  speech  to  incite  reyoltand  rebellion 
within  said  State  against  the  Constitution  and  Gov 
ernment  of  the  United  States,  and  did  then  and  there 
publicly  declare  that  it  was  the  right  of  the  people 
of  said  State,  by  an  ordinance  of  secession,  to  absolve 
themselves  from  all  allegiance  to  the  Government  of 
the  United  States,  the  Constitution,  and  laws  thereof." 

The  offense  with  which  Humphreys  is  charged 
in  tliis  article  was  committed  on  the  29th  day 
of  December,  1860,  before  the  fall  of  Sumter, 
and  when  only  one  State  had  passed  an  ordi 
nance  of  secession.  The  declaration  was  merely 
a  declaration  in  a  public  speech  that  the  State 
of  Tennessee  had  the  right  to  secede  from  the 
Union. 

The  President,  in  his  speech  of  the  18th  of 
August.  18G6,  at  Washington,  says: 

"  We  have  witnessed  in  one  department  of  the  Gov 
ernment  every  effort,  as  it  were,  to  prevent  the  res 
toration  of  peace,  harmony,  and  union;  we  have 
seen,  as  it  were,  hanging  upon  the  verge  of  the  Gov 
ernment,  as  it  were,  a  body  calling  or  assuming  to 
be  the  Congress  of  the  United  States,  when  it  was  but 
a  Congress  of  a  part  of  theStntcs;  -we  have  seen  Con 
gress  assuming  to  be  lor  tho  Union  when  every  step 
they  took  was  to  perpetuate  dissolution  and  make 
dissolution  permanent.  Wo  have  seen  every  step 
that  has  been  taken,  instead  of  bringing  about  rec 
onciliation  and  harmony,  has  been  legislation  that 
took  the  character  of  penalties,  retaliation,  and  re 
venge.  This  has  been  the  course;  this  has  been  the 
policy  of  one  department  of  your  Government." 

These  words  have  been  repeated  so  frequently, 
and  the  public  ear  is  so  much  accustomed  to 
them,  that  they  have  apparently  lost  their  in 
fluence  upon  tiie  public  mind.  But  it  should 
be  observed  that  these  words,  as  has  been 
proved  by  the  experience  of  two  years,  were 
but  the  expression  of  a  fixed  purpose  of  the 
President.  His  design  was  to  impair,  to  under 
mine,  and,  if  possible,  to  destroy  the  influence 
of  Congress  in  the  country.  Having  accom 
plished  this  result,  the  way  would  then  have  been 
open  to  him  for  the  prosecution  of  his  crim 
inal  design  to  reconstruct  the  Government  in 
the  interest  of  the  rebels,  and,  through  his  influ 
ence  with  them,  to  secure  his  own  election  to 
the  Presidency  in  1868.  It  must,  however,  be 
apparent  that  the  words  in  the  speech  of  Mr. 
Johnson  are  of  graver  import  than  the  words 
which  were  spoken  by  Judge  Chase  to  the  grand 
jury  at  Baltimore,  or  those  uttered  by  Judge 
Humphreys  to  the  people  of  Tennessee.  And 
yet  the  latter  was  convicted  by  a  unanimous 


vote  of  this  Senate;  and  the  former  escaped 
conviction  by  four  votes  only.  These  words 
are  of  graver  import,  not  merely  in  the  circum 
stance  that  they  assail  a  department  of  the  Gov 
ernment,  but  in  the  circumstance  that  they  were 
uttered  by  the  President  of  the  United  States 
in  the  Executive  Mansion,  and  in  his  capacity 
as  President  of  the  United  States,  when  receiv 
ing  the  congratulations  and  support  of  a  portion 
of  the  people  of  the  country,  tendered  to  him 
in  his  office  as  Chief  Magistrate.  Judge  Chase, 
although  a  high  officer  of  the  Government,  was 
without  political  influence  and  without  patron 
age;  his  personal  and  official  relations  were 
limited,  and  his  remarks  were  addressed  to  the 
grand  jury  of  a  judicial  district  of  the  country 
merely. 

Judge  Humphreys  was  comparatively  un 
known  ;  and  although  his  words  were  calculated 
to  excite  the  citizens  of  Tennessee,  and  induce 
them  to  engage  in  unconstitutional  undertak 
ings,  his  influence  was  limited  measurably  to 
the  people  of  that  State. 

Mr.  Johnson  addressed  the  whole  country ; 
and  holding  in  his  hands  the  immense  patron 
age  and  influence  belonging  to  the  office  of 
President,  he  was  able  to  give  practical  effect 
to  the  declarations  he  then  made.  The  nature 
of  the  respondent's  offense  is  illustrated  by  the 
law  in  reference  to  the  duty  of  officers  and 
soldiers  of  the  Army,  although  the  law  is  not 
applicable  to  the  President: 

"Any  officer  or  soldier  who  shall  use  contemptuous 
or  disrespectful  words  against  the  President  of  the 
United  States,  against  the  Vice  President  thereof, 
against  tho  Congress  of  the  United  States,  shall  be 
cashiered  or  otherwise  punished,  as  a  court-martini 
shall  direct."— titalutea-at-Large,  vol.  2,  p.  U60,  April 
10, 1806. 

Moreover,  in  the  case  of  Judge  Chase,  as  is 
stated  by  Mr.  Dane  in  his  "Abridgment/' 
(vol.  7,  chap.  222:) 

"On  the  whole  evidence  it  remained  in  doubt  what 
words  ho  did  utter.  The  proof  of  seditious  intent 
rested  solely  on  the  words  themselves;  and  as  the 
words  were  not  clearly  proved  tho  intent  was  in 
doubt." 

In  the  case  of  Mr.  Johnson  there  is  no  doubt 
about  the  words  uttered;  they  have  been  fully 
and  explicitly  proved.  Indeed,  they  are  not 
denied  by  the  respondent.  The  unlawful  in 
tent  with  which  he  uttered  the  words  not  only 
appears  from  the  character  of  the  language 
employed,  but  it  is  proved  by  the  history  of 
his  Administration.  In  his  message  of  the  22d 
of  June,  1866,  relating  to  the  constitutional 
amendment,  in  his  annual  message  of  Decem 
ber,  1866,  and  in  .numerous  other  declarations, 
he  has  questioned  and  substantially  denied  the 
legality  of  the  Congress  of  the  United  States. 

In  the  trial  of  Judge  Chase  it  was  admitted 
by  the  respondent  "that  for  a  judge  to  utter 
seditious  sentiments  with  intent  to  excite  sedi 
tion  would  bean  impeachable  offense."  (Dane's 
Abridgment,  vol.  7,  chap.  222.)  And  this  not 
under  the  act  known  as  the  "sedition  act;" 
for  that  had  been  previously  repealed ;  but 
upon  the  general  principle  thatau  officer  whose 


33 


duty  it  is  to  administer  the  law  has  no  right  to 
use  language  calculated  to  stir  up  resistance  to 
the  law.  If  this  be  true  of  a  jud^e,  with 
stronger  reason  it  is  true  of  the  President  of 
the  United  States,  that  he  should  set  an  exam 
ple  of  respect  for  all  the  departments  of  the 
Government  and  of  reverence  for  and  obedience 
to  the  laws  of  the  land. 

The  speeches  made  by  the  President  at  Cleve 
land  and  St.  Louis,  which  have  been  proved 
and  are  found  in  the  record  of  the  case,  con 
tain  numerous  passages  similar  in  character  to 
that  extracted  from  his  speech  of  the  18th  of 
August,  1866.  and  all  calculated  and  designed 
to  impair  the  just  authority  of  Congress.  While 
these  declarations  have  not  been  made  the 
basis  of  substantive  charges  in  the  articles  of 
impeachment,  they  furnish  evidence  of  theun- 
lawful  intent  of  the  President  in  his  utterance 
of  the  18th  of  August,  and  also  of  the  fact  that 
that  utterance  was  not  due  to  any  temporary 
excitement  or  transient  purpose  which  passed 
away  with  the  occasion  which  had  called  it 
forth.  It  was  a  declaration  made  in  accord 
ance  with  a  fixed  design,  which  had  obtained 
such  entire  control  of  his  nature  that  whenever 
he  addressed  public  assemblies  he  gave  expres 
sion  to  it.  The  evidence  which  has  been  sub 
mitted  by  the  respondent  bearing  upon  the 
tenth  article  indicates  a  purpose,  in  argument, 
to  excuse  the  President  upon  the  ground  that 
the  remarks  of  the  people  stimulated,  irritated, 
and  excited  him  to  such  an  extent  that  he  was 
not  wholly  responsible  for  what  he  said.  If 
this  were  true,  it  would  exhibit  great  weakness 
of  character  ;  but  as  a  matter  of  fact  it  is  not 
true.  The  taunts  and  gibes  of  the  people  served 
only  to  draw  from  him  those  declarations  which 
were  in  accord  with  the  purposes  of  his  life. 
This  is  shown  by  the  fact  that  all  his  political 
declarations  made  at  Cleveland  and  at  St.  Louis, 
though  made  under  excitement,  are  in  entire 
harmony  with  the  declarations  made  by  him  in 
the  East  Room  of  the  Executive  Mansion,  on 
the  18th  of  August,  1866,  when  he  was  free 
from  any  disturbing  influence,  and  expressed 
himself  with  all  the  reserve  of  which  his  nature 
is  capable. 

The  blasphemous  utterances  at  St.  Louis 
cannot  be  aggravated  by  me,  nor  can  they  be 
extenuated  by  anything  which  counsel  for  the 
respondent  can  offer.  They  exhibit  the  char 
acter  of  the  speaker. 

Upon  these  facts  thus  proved  and  the  views 
presented  we  demand  the  conviction  of  the 
respondent  of  the  misdemeanors  charged  in 
the  tenth  article. 

Article  eleven  sets  forth  that  the  object  of  the 
President  in  most  of  the  offenses  alleged  in  the 
preceding  articles  was  to  prevent  the  execution 
of  the  act  passed  March  2,  1867,  entitled,  "An 
act  for  the  more  efficient  government  of  the  rebel 
States."  It  is  well  known,  officially  and  pub 
licly,  that  on  the  29th  of  May,  1865,  Mr.  Johnson 
issued  a  proclamation  for  the  reorganization 
of  the  government  of  North  Carolina,  and  that 


that  proclamation  was  followed  by  other  proc 
lamations,  issued  during  the  next  four  months, 
for  the  government  of  the  several  States  which 
had  been  engaged  in  the  rebellion.  Upon  the 
death  of  Mr.  Lincoln  Mr.  Johnson  entered 
upon  the  office  of  President  in  a  manner  which 
indicated  that,  in  his  judgment,  he  had  been 
long  destined  to  fill  the  place,  and  that  the 
powers  of  the  office  were  to  be  exercised  by 
him  without  regard  to  the  other  departments 
of  the  Government.  In  his  proclamation  of 
the  29th  of  May,  and  in  all  the  proclamations 
relating  to  the  same  subject,  he  had  assumed 
that  in  his  office  as  President  he  was  the 
"  United  States,"  for  the  purpose  of  deciding 
whether,  under  the  Constitution,  the  govern 
ment  of  a  State  was  republican  in  form  or  not ; 
although  by  a  decision  of  the  Supreme  Court 
it  is  declared  that  this  power  is  specially  vested 
in  the  two  Houses  of  Congress.  In  these  proc 
lamations  he  assumed,  without  authority  of 
law,  to  appoint,  and  he  did  appoint,  Governors 
of  the  several  States  thus  organized.  In  fine, 
between  the  29th  of  May,  1865,  and  the  assem 
bling  of  Congress  in  December  of  that  year, 
he  exercised  sovereign  power  over  the  terri 
tory  and  people  of  the  eleven  States  that  had 
been  engaged  in  the  rebellion. 

On  the  assembling  of  Congress  in  the  month 
of  Decemberhe  informed  the  Senate  and  House 
of  Representatives  that  the  Union  was  restored, 
and  that  nothing  remained  for  the  two  Houses 
but  severally  to  accept  as  Senators  and  Repre 
sentatives  such  loyal  men  as  had  been  elected 
by  the  Legislatures  and  people  of  the  several 
States.  Congress  refused  to  ratify  or  to  recog 
nize  those  proceedings  upon  the  part  of  the 
President  as  legal  or  proper  proceedings,  and 
from  that  time  forward  he  has  been  engaged  in 
various  projects  for  the  purpose  of  preventing 
the  reconstruction  of  the  Union  on  any  other 
plan  than  that  which  he  had  inaugurated.  In 
the  execution  of  this  design  he  attempted  to 
deprive  Congress  of  the  confidence  of  the  peo 
ple  of  the  country ;  hence  it  was  that,  among 
other  things,  on  the  18th  day  of  August,  1866, 
at  the  city  of  Washington,  as  set  forth  in  the 
tenth  and  eleventh  articles,  he  did  in  a  public 
speech  declare  and  affirm  in  substance  that  the 
Thirty-Ninth  Congress  of  the  United  States 
was  not  a  Congress  authorized  by  the  Consti 
tution  to  exercise  legislative  power  under  the 
same ;  but,  on  the  contrary,  was  a  Congress 
of  only  a  part  of  the  States. 

In  the  further  execution  of  his  purpose  to 
prevent  the  reconstruction  of  the  Union  upon 
any  plan  except  that  which  he  had  inaugurated, 
he  attempted  to  prevent  the  ratification  by  the 
several  States  of  the  amendment  to  the  Con 
stitution  known  as  article  fourteen.  By  the 
Constitution  the  President  has  no  power  to 
participate  in  amendments  or  in  propositions 
for  amendments  thereto  ;  yet,  availing  himself 
of  the  circumstance  of  the  passage  of  a  resolu 
tion  by  the  House  of  Representatives  on  the 
13th  day  of  June,  1866,  requesting  the  Presi- 


dent  to  submit  to  the  Legislatures  of  the  several 
States  the  said  additional  article  to  the  Con 
stitution  of  the  United  States,  he  sent  to  the 
Senate  and  House  of  Representatives  a  message 
in  writing,  in  which  he  says  : 

"Even  in  ordinary  times  any  question  of  amend 
ing  the  Constitution  must  be  justly  regarded  as  of 
paramount  importance.  This  importance  is  at  the 
present  time  enhanced  by  the  fact  that  the  joint 
resolution  was  not  submitted  by  the  two  Houses  for 
the  approval  of  the  President,  and  that  of  the  thirty- 
six  States  which  constitute  the  Union  eleven  are 
excluded  from  representation  in  either  House  of 
Congress,  although,  with  the  single  exception  of 
Texas,  they  have  been  entirely  restored  to  all  their 
functions  as  States,  in  conformity  with  the  organic 
law  of  the  land,  and  have  appeared  at  the  national 
Capitol  by  Senators  and  Representatives  who  have 
applied  for  and  have  been  refused  admission  to  the 
vacant  seats.  Nor  have  the  sovereign  people  of  the 
nation  been  afforded  an  opportunity  of  expressing 
their  views  upon  the  important  questions  which  the 
amendment  involves.  Grave  doubts,  therefore,  may 
naturally  and  justly  arise  as  to  whether  the  action 
of  Congress  is  in  harmony  with  the  sentiments  of 
the  people,  and  whether  State  Legislatures,  elected 
without  reference  to  such  an  issue,  should  be  called 
upon  by  Congress  to  decide  respecting  the  ratification 
of  the  proposed  amendment." 

He  also  says : 

"A  proper  appreciation  of  the  letter  and  spirit  of 
the  Constitution,  as  well  as  of  the  interests  of  na 
tional  order,  harmony,  and  union,  and  a  due  defer 
ence  for  an  enlightened  public  judgment,  may  at 
this  time  well  suggest  a  doubt  whether  any  amend 
ment  to  the  Constitution  ought  to  be  proposed  by 
Congress  and  pressed  upon  the  Legislatures  of  the 
several  States  for  final  decision  until  after  the  ad 
mission  of  such  loyal  Senators  and  Representatives 
of  the  now  unrepresented  States  as  have  been,  or  as 
may  hereafter  be,  chosen  in  conformity  with  the  Con 
stitution  and  laws  of  the  United  States." 

This  message  was  an  extra-official  proceed 
ing,  inasmuch  as  his  agency  in  the  work  of 
amending  the  Constitution  is  not  required; 
and  it  was  also  a  very  clear  indication  of  an 
opinion  on  his  part  that,  inasmuch  as  the  eleven 
States  were  not  represented,  the  Congress  of 
the  United  States  had  no  power  to  act  in  the 
matter  of  amending  the  Constitution. 

The  proposed  amendment  to  the  Constitu 
tion  contained  provisions  which  were  to  be 
made  the  basis  of  reconstruction.  The  laws 
subsequently  passed  by  Congress  recognize  the 
amendment  as  essential  to  the  welfare  and  safety 
of  the  Union.  It  is  alleged  in  the  eleventh  arti 
cle  that  one  of  the  purposes  of  the  President 
in  the  various  unlawful  acts  charged  in  the 
several  articles  of  impeachment,  and  proved 
against  him,  was  to  prevent  the  execution  of 
the  act  entitled  "  An  act  for  the  more  efficient 
government  of  the  rebel  States,"  passed  March 
2,  1867.  In  the  nature  of  the  case  it  has  not 
been  easy  to  obtain  testimony  upon  this  point, 
nor  upon  any  other  point  touching  the  miscon 
duct  and  crimes  of  the  President.  His  declara 
tions  and  his  usurpations  of  power  have  rendered 
a  large  portion  of  the  officeholders  of  the  country 
for  the  time  being  subservient  to  his  purposes ; 
they  have  been  ready  to  conceal  and  reluctant 
to  communicate  any  evidence  calculated  to  im 
plicate  the  President.  His  communications 
with  the  South  have  been  generally,  and  it 
may  be  said  almost  exclusively,  with  the  men 


who  had  participated  in  the  rebellion,  and  who 
are  now  hoping  for  final  success  through  his 
aid.  They  have  looked  to  him  as  their  leader, 
by  whose  efforts  and  agency  in  the  office  of 
President  of  the  United  States  they  were  either 
to  accomplish  the  objects  for  which  the  war 
was  undertaken,  or  at  least  to  secure  a  resto 
ration  to  the  Union  under  such  circumstances 
that,  as  a  section  of  the  country  and  an  in 
terest  in  the  country,  they  should  possess  and 
exercise  that  power  which  the  slaveholders 
of  the  South  possessed  and  exercised  previous 
to  the  rebellion.  These  men  have  been  bound 
to  him  by  the  strong  bonds  of  hope,  fear,  and 
ambition.  The  corruptions  of  the  public  ser 
vice  have  enriched  multitudes  of  his  adherents 
and  quickened  and  strengthened  the  passion 
of  avarice  in  multitudes  more.  These  classes 
of  men,  possessing  wealth  and  influence  in 
many  cases,  have  exerted  their  power  to  close 
up  every  avenue  of  information.  Hence  the 
efforts  of  the  committees  of  the  House  of 
Representatives  and  the  efforts  of  the  Man 
agers  to  ascertain  the  truth  and  to  procure  tes 
timony  which  they  were  satisfied  was  in  exist 
ence  have  been  defeated  often  by  the  devices 
and  machinations  of  those  who  in  the  North 
and  in  the  South  are  supposed  to  be  allied  to 
the  President.  There  can,  however,  be  no 
doubt  that  the  President  in  every  way  open  to 
him  used  his  personal  and  official  influence 
to  defeat  the  ratification  of  the  constitutional 
amendment.  Evidence  of  such  disposition  and 
of  the  fact  also  is  found  in  the  telegraphic 
correspondence  of  January,  1867,  between  Mr. 
Johnson  and  Lewis  E.  Parsons,  who  had  been 
previously  appointed  Governor  of  Alabama  by 
the  President.  It  is  as  follows : 

MONTGOMERY,  ALABAMA,  January  17, 1867. 
Legislature  in  session.  Efforts  making  to  recon 
sider  vote  on  constitutional  amendment.  Report 
from  Washington  says  it  is  probable  an  enabling  act 
will  pass.  We  do  not  know  what  to  believe.  I  find 
nothing  here.  LEWIS  E.  PARSONS, 

Exchange  Hotel. 
His  Excellency  ANDREW  JOHNSON,  President. 

UNITED  STATES  MILITARY  TELEGRAPH, 
EXECUTIVE  OFFICE, 

WASHINGTON,  D.  C.,  January  17, 1867. 
What  possible  good  can  be  obtained  by  reconsider 
ing  the  constitutional  amendment  ?  I  know  of  none  in 
the  present  posture  of  affairs;  and  I  do  not  believe 
the  people  of  the  whole  country  will  sustain  any  set 
of  individuals  in  attempts  to  change  the  whole  char 
acter  of  our  Government  by  enabling  acts  or  other 
wise.  I  believe,  on  the  contrary,  that  they  will  event 
ually  uphold  all  who  have  patriotism  and  courage  to 
stand  by  the  Constitution  and  who  place  their  confi 
dence  in  the  people.  There  should  be  no  faltering  on 
the  part  of  those  who  are  honest  in  their  determina 
tion  to  sustain  the  several  coordinate  departments 
of  the  Government  in  accordance  with  its  original 
design.  ANDREW  JOHNSON. 

Hon.  LEWIS  E.  PARSONS,  Montgomery,  Alabama. 

This  correspondence  shows  his  fixed  purpose 
to  defeat  the  congressional  plan  of  reconstruc 
tion.  Pursuing  the  subject  further  it  is  easy 
to  discover  and  comprehend  his  entire  scheme 
of  criminal  ambition.  It  was  no  less  than  this : 
to  obtain  command  of  the  War  Department 


35 


and  of  the  Army,  and  by  their  combined  power 
to  control  the  elections  of  1868  in  the  ten  States 
not  yet  restored  to  the  Union.  The  congres 
sional  plan  of  reconstruction  contained  as  an 
essential  condition  the  extension  of  the  elective 
franchise  to  all  loyal  male  citizens,  and  the 
exclusion  from  the  franchise  of  a  portion  of 
those  who  had  been  most  active  in  originating 
and  carrying  on  the  rebellion.  The  purpose 
of  Mr.  Johnson  was  to  limit  the  elective  fran 
chise  to  white  male  citizens,  and  to  permit  the 
exercise  of  it  by  all  such  persons  without  re 
gard  to  their  disloyalty.  If  he  could  secure 
the  control  of  the  War  Department  and  of  the 
Army  it  would  be  entirely  practicable,  and  not 
only  practicable  but  easy,  for  him  in  the  coming 
elections  quietly  to  inaugurate  a  policy  through 
out  the  ten  States  by  which  the  former  rebels, 
strengthened  by  the  support  of  the  Executive 
here,  and  by  the  military  forces  distributed 
over  the  South,  would  exclude  from  the  polls 
every  colored  man  and  permit  the  exercise  of 
the  elective  franchise  by  every  white  rebel. 
By  these  means  he  would  be  able  to  control 
the  entire  vote  of  the  ten  rebel  States  ;  by  the 
same  means,  or  indeed  by  the  force  of  the  facts, 
he  would  be  able  to  secure  the  election  of  dele 
gates  to  the  Democratic  national  convention 
favorable  to  his  own  nomination  to  the  Presi 
dency.  The  vote  of  these  ten  States  in  the 
convention,  considered  in  connection  with  the 
fact  that  he  and  his  friends  could  assure  dele 
gates  from  other  sections  of  the  country  that, 
if  he  were  nominated,  he  could  control  beyond 
peradventure  the  electoral  vote  of  these  ten 
States,  would  have  secured  his  nomination. 
This  he  confidently  anticipated.  Nor,  indeed, 
can  there  be  much. doubt  that  this  scheme 
would  have  been  successful ;  but  it  was  apparent 
that  there  was  no  possibility  of  his  obtaining 
the  control  of  the  War  Department  and  of  the 
Army  unless  he  could  disregard  and  break 
down  the  act  regulating  the  tenure  of  certain 
civil  offices,  passed  March  2,  1867.  If,  how 
ever,  he  could  annul  or  disregard  or  set  aside 
the  provisions  of  that  act,  then  the  way  was 
open  for  the  successful  consummation  of  his 
plan.  With  thousands  and  tens  of  thousands 
of  office  holders,  scattered  all  over  the  coun 
try,  depending  upon  him  for  their  offices  and 
for  the  emoluments  of  their  offices,  he  would 
be  able  to  exert  a  large  influence,  if  not  abso 
lutely  to  control  the  nominations  of  the  Demo 
cratic  party  in  every  State  of  the  Union.  With 
the  War  Department  in  his  hands,  and  the  ten- 
ure-of  office  act  broken  down,  he  would  be 
able  to  remove  General  Grant,  General  Sher 
man,  General  Sheridan,  or  any  other  officer, 
high  or  low,  who,  in  his  opinion,  or  upon  the 
facts,  might  be  an  obstacle  in  his  way.  With 
the  Army  thus  corrupted  and  humiliated,  its 
trusted  leaders  either  driven  from  the  service 
or  sent  into  exile  in  distant  parts  of  the  coun 
try,  he  would  be  able  to  wield  the  power  of 
that  vast  organization  for  his  own  personal 
advantage. 


Under  these  circumstances  it  was  not  prob 
able  merely,  but  it  was  as  certain  as  anything 
in  the  future  could  be,  that  he  would  secure, 
first,  the  nomination  of  the  Democratic  party 
in  the  national  nominating  convention  ;  and 
secondly,  that  he  would  secure  the  electoral 
votes  of  these  ten  States.  This  being  done,  he 
had  only  to  obtain  enough  votes  from  the  States 
now  represented  in  Congress  to  make  a  ma 
jority  of  electoral  votes,  and  he  would  defy  the 
House  and  Senate  should  they  attempt  to  reject 
the  votes  of  the  ten  States,  and  this  whether 
those  States  had  been  previously  restored  to  the 
Union  or  not.  In  a  contest  with  the  two  Houses 
he  and  his  friends  and  supporters,  including 
the  War  Department,  the  Treasury  Department, 
and  the  Army  and  Navy,  would  insist  that  he 
had  been  duly  elected  President,  and  by  the 
support  of  the  War  Department,  the  Treasury 
Department,  the  Army,  and  the  Navy,  he  would 
have  been  inaugurated  on  the  4th  of  March 
next  President  of  the  United  States  for  four 
years. 

That  the  President  was  and  is  hostile  to  Mr. 
Stariton,  and  that  he  desired  his  removal  from 
office,  there  is  no  doubt ;  but  he  has  not  as 
sumed  the  responsibility  which  now  rests  upon 
him,  he  has  not  incurred  the  hazard  of  his 
present  position,  for  the  mere  purpose  of  grat 
ifying  his  personal  feelings  toward  Mr.  Stan- 
ton.  He  disregarded  the  tenure- of-office  act ; 
he  first  suspended  and  then  removed  Mr.  Stan- 
ton  from  the  office  of  Secretary  for  the  De 
partment  of  War;  he  defied  the  judgment  of 
and  the  advice  and  authority  of  the  Senate ; 
he  incurred  the  risk  of  impeachment  by  the 
House  of  Representatives,  and  trial  and  con 
viction  by  this  tribunal,  under  the  influence  of 
an  ambition  unlimited  and  unscrupulous,  which 
dares  anything  and  everything  necessary  to  its 
gratification.  For  the  purpose  of  defeating  the 
congressional  plan  of  reconstruction  he  has 
advised  and  encouraged  the  people  of  the 
South  in  the  idea  that  he  would  restore  them 
to  their  former  privileges  and  power  ;  that  he 
would  establish  a  white  man's  Government; 
that  he  would  exclude  the  negroes  from  all 
participation  in  political  affairs  ;  and,  finally, 
that  he  would  accomplish  in  their  behalf  whut 
they  had  sought  by  rebellion,  but  by  rebellion 
had  failed  to  secure.  Hence  it  is  through  his 
agency  and  by  his  influence  the  South  has 
been  given  up  to  disorder,  rapine,  and  blood 
shed ;  hence  it  is  that  since  the  surrender  of 
Lee  and  Johnston  thousands  of  loyal  men, 
black  and  white,  have  been  murdered  in  cold 
blood  or  subjected  to  cruelties  and  tortures 
such  as  in  modern  times  have  been  perpetrated 
only  by  savage  nations  and  in  remote  parts  of 
the  world  ;  hence  it  is  that  twelve  million  peo 
ple  are  without  law,  without  order,  unprotected 
in  their  industry  or  their  rights ;  hence  it  is 
that  ten  States  are  without  government  and 
unrepresented  in  Congress ;  hence  it  is  that 
the  people  of  the  North  are  even  now  uncer 
tain  whether  the  rebellion,  vanquished  in  the 


field,  is  not  finally  to  be  victorious  in  the  coun 
cils  and  in  the  Cabinet  of  the  country  ;  hence 
it  is  that  the  loyal  people  of  the  entire  Union 
look  upon  Andrew  Johnson  as  their  worst 
enemy  ;  hence  it  is  that  those  who  participated 
in  the  rebellion,  and  still  hope  that  its  power 
may  once  more  be  established  in  the  country, 
look  upon  Andrew  Johnson  as  their  best  friend, 
and  as  the  last  and  chief  supporter  of  the  views 
which  they  entertain. 

The  House  of  Representatives  has  brought 
this  respondent  to  your  bar  for  trial,  for  con 
viction,  and  for  judgment;  but  the  House  of 
Representatives,  as  a  branch  of  the  legislative 
department  of  the  Government,  has  no  special 
interest  in  these  proceedings.  It  entered  upon 
them  with  great  reluctance,  after  laborious  and 
continued  investigation,  and  only  upon  a  con 
viction  that  the  interests  of  the  country  were 
in  peril,  and  that  there  was  no  way  of  relief 
except  through  the  exercise  of  the  highest 
constitutional  power  vested  in  that  body.  We 
do  not  appeal  to  this  tribunal  because  any  spe 
cial  right  of  the  House  of  Representatives  has 
been  infringed,  or  because  the  just  powers  of 
or  the  existence  of  the  House  are  in  danger, 
except  as  that  body  must  always  participate 
in  the  good  or  ill  fortune  of  the  country.  They 
have  brought  this  respondent  to  your  bar,  and 
here  demand  his  conviction  in  the  belief,  as 
the  result  of  much  investigation,  of  much  de 
liberation,  that  the  interests  of  this  country 
are  no  longer  safe  in  his  hands. 

But  the  House  of  Representatives,  repre 
senting  the  people  of  the  country,  may  very 
properly  appeal  to  this  tribunal,  constituted, 
as  it  is,  exclusively  of  Senators  representing 
the  different  States  of  this  Union,  to  maintain 
the  constitutional  powers  of  the  Senate.  To 
be  sure,  nothing  can  injuriously  affect  the 
powers  and  the  rights  of  the  Senate  which 
does  not  affect  injuriously  the  rights  of  the 
House  of  Representatives,  and  of  the  people 
of  the  whole  country;  but  it  may  be  said  with 
great  truth  that  this  contest  is  first  for  the 
preservation  of  the  constitutional  powers  of 
this  branch  of  the  Government.  By  your 
votes  and  action,  in  concurrence  with  the 
House  of  Representatives,  the  bill  "regulating 
the  tenure  of  certain  civil  offices"  was  passed 
and  became  a  law,  and  this  notwithstanding 
the  objections  of  the  President  thereto  and  his 
argument  against  its  passage.  On  a  subse 
quent  occasion,  when  you  considered  the  sus 
pension  of  Mr.  Stanton  and  the  message  of  the 
President,  in  which,  by  argument  and  by  state 
ments,  he  assailed  the  law  in  question,  you 
asserted  its  validity  and  its  constitutionality 
by  refusing  to  concur  in  the  suspension  of  Mr. 
Stanton.  On  a  more  recent  occasion,  when 
he  attempted  to  remove  Mr.  Stanton  from 
office,  you,  by  solemn  resolution,  declared 
that  his  action  therein  was  contrary  to  the 
laws  and  to  the  Constitution  of  the  country. 

From  the  beginning  of  the  Government  this 
body  has  participated  under  the  Constitution 


and  by  virtue  of  the  Constitution  in  all  matters 
pertaining  to  appointments  to  office ;  and,  by  the 
universal  practice  of  the  country,  as  well  be 
fore  the  passage  of  the  tenure-of-office  act  as 
since,  no  removal  of  any  officer  whose  appoint 
ment  was  by  and  with  the  advice  and  consent 
of  the  Senate,  has  been  made  during  a  session 
of  the  Senate,  with  your  knowledge  and  sanc 
tion,  except  by  the  nomination  of  a  successor, 
whose  nomination  was  confirmed  by  and  with 
the  advice  and  consent  of  the  Senate.  Mr. 
Johnson,  in  presence  of  this  uniform  constitu 
tional  practice  of  three  quarters  of  a  century 
and  against  the  express  provisions  of  the  ten 
ure-of-office  act,  made  in  this  particular  in 
entire  harmony  with  that  practice,  asserts  now, 
absolutely,  the  unqualified  power  to  remove 
every  officer  in  the  country  without  the  advice 
or  consent  of  the  Senate. 

Never  in  the  history  of  any  free  government 
has  there  been  so  base,  so  gross,  so  unjustifi 
able  an  attempt  upon  the  part  of  an  executive, 
whether  emperor,  king,  or  President,  to  destroy 
the  just  authority  of  another  department  of 
the  Government. 

The  House  of  Representatives  has  not  been 
indifferent  to  this  assault ;  it  has  not  been 
unmindful  of  the  danger  to  which  you  have 
been  exposed ;  it  has  seen,  what  you  must  ad 
mit,  that  without  its  agency  and  support  you 
were  powerless  to  resist  these  aggressions,  or 
to  thwart,  in  any  degree,  the  purposes  of  this 
usurper.  In  the  exercise  of  their  constitutional 
power  of  impeachment  they  have  brought  him 
to  your  bar  ;  the}'  have  laid  before  you  the  evi 
dence  showing  conclusively  the  nature,  the 
extent,  and  the  depth  of  his  guilt.  You  hold 
this  great  power  in  trust,  not  for  yourselves 
merely,  but  for  all  your  successors  in  these 
high  places,  and  for  all  the  people  of  this  coun 
try.  You  cannot  fail  to  discharge  your  duty ; 
that  duty  is  clear.  On  the  one  hand  it  is  your 

,  duty  to  protect,  to  preserve,  and  to  defend  your 
own  constitutional  rights,  but  it  is  equally  your 
duty  to  preserve  the  laws  and  institutions  of 
the  country.  It  is  your  duty  to  protect  and 
defend  the  Constitution  of  the  United  States, 
and  the  rights  of  the  people  under  it ;  it  is  your 
duty  to  preserve  and  to  transmit  unimpaired  to 
your  successors  in  these  places  all  the  consti 
tutional  rights  and  privileges  guarantied  to 
this  body  by  the  form  of  government  under 
which  we  live.  On  the  other  hand,  it  is  your 
duty  to  try  and  convict  the  accused,  if  guilty, 
and  to  pronounce  judgment  upon  the  respond 
ent,  that  all  his  successors,  and  all  men  who 
aspire  to  the  office  of  President  in  time  to 
come,  may  understand  that  the  House  of  Rep 
resentatives  and  the  Senate  will  demand  the 
strictest  observance  of  the  Constitution  ;  that 
they  will  hold  every  man  in  the  presidential 
office  responsible  for  a  rigid  performance  of  his 
public  duties* 

Nothing,  literally  nothing,  can  be  said  in 
defense  of  this  respondent.  Upon  his  own 

I  admissions  he  is  guilty,  in  substance,  of  the 


37 


gravest  charges  contained  in  the  articles  of 
impeachment  exhibited  against  him  by  the 
House  of  Representatives.  In  his  personal 
conduct  and  character  he  presents  no  quality 
or  attribute  which  enlists  the  sympathy  or  the 
regard  of  men.  The  exhibition  which  he  made 
in  this  Chamber  on  the  4th  of  March,  1865,  by 
which  the  nation  was  humiliated  and  repub 
lican  institutions  disgraced,  in  the  presence  of 
the  representatives  of  the  civilized  nations  of 
the  earth,  is  a  truthful  exhibition  of  his  char 
acter.  His  violent,  denunciatory,  blasphemous 
declarations  made  to  the  people  on  various 
occasions,  and  proved  by  the  testimony  sub 
mitted  to  the  Senate,  illustrate  other  qualities 
of  his  nature.  His  cold  indifference  to  the 
desolation,  disorder,  and  crimes  in  the  ten 
States  of  the  South  exhibit  yet  other  and 
darker  features. 

Can  any  one  entertain  the  opinion  that  Mr. 
Johnson  is  not  guilty  of  such  crimes  as  justify 
his  removal  from  office  and  his  disqualifica 
tion  to  hold  any  office  of  trust  or  profit  under 
the  Government  of  the  United  States?  Wil 
liam  Blount,  Senator  of  the  United  States, 
was  impeached  by  the  House  of  Representa 
tives  and  declared  guilty  of  a  high  misdemeanor, 
and  though  not  tried  by  the  Senate  the  Senate 
did,  nevertheless,  expel  him  from  his  seat  by 
a  vote  of  25  to  1,  and,  in  the  resolution  of  ex 
pulsion,  declared  that  he  had  been  guilty  of  a 
high  misdemeanor.  The  crime  of  William 
Blount  was  that  he  wrote  a  letter  and  partici 
pated  in  conversations,  from  which  it  appeared 
probable  that  he  was  engaged  in  an  immature 
scheme  to  alienate  the  Indians  of  the  South 
west  frrtm  the  President  and  the  Congress  of 
the  United  States;  and  also,  incidentally,  to 
disturb  the  friendly  relations  between  this 
Government  and  the  Governments  of  Spain 
and  Great  Britain.  This,  at  most,  was  but  an 
arrangement,  never  consummated  into  any 
overt  act,  by  which  he  contemplated,  under 
possible  circumstances  which  never  occurred, 
that  he  would  violate  the -neutrality  laws  of 
the  United  States. 

Andrew  Johnson  is  guilty,  upon  the  proof  in 
part  and  upon  his  own  admissions,  of  having 
intentionally  violated  a  public  law,  of  usurping 
and  exercising  powers  not  exercised  nor  even 
asserted  by  any  of  his  predecessors  in  office. 

Judge  Pickering,  of  the  district  court  of 
New  Hampshire,  was  impeached  by  the  House 
of  Representatives,  convicted  by  the  Senate, 
and  removed  from  office,  for  the  crime  of  hav 
ing  appeared  upon  the  bench  in  a  state  of  in 
toxication.  I  need notdraw  any  parallel  between 
Judge  Pickering  and  this  respondent. 

Judge  Prescolt,  of  Massachusetts,  was  im 
peached  and  removed  from  office  for  receiving 
illegal  fees  in  his  office  to  the  amount  of  $10  70 
only.  Judge  Prescptt  belonged  to  one  of  the 
oldest  and  most  eminent  families  of  the  State, 
and  he  was  himself  a  distinguished  lawyer. 
But  such  was  the  respect  of  the  Senate  of  that 
sate  for  the  law,  and  such  the  public  opinion 


that  it  was  the  duty  of  magistrates  to  obey  the 
law,  that  they  did  not  hesitate  to  convict  him 
and  remove  him  from  office. 

The  Earl  of  Macclesfield  was  impeached  and 
convicted  for  the  misuse  of  his  official  powers 
in  regard  to  trust  funds,  an  offense  in  itself  of 
a  grave  character,  but  a  trivial  crime  compared 
with  the  open,  wanton,  and  defiant  violation 
of  law  by  a  Chief  Magistrate  whose  highest 
duty  is  the  execution  of  the  laws. 

If  the  charges  preferred  against  Warren 
Hastings  had  been  fully  sustained  by  the  testi 
mony,  he  would  be  regarded  in  history  as  an 
unimportant  criminal  when  compared  with  the 
respondent.  Warren  Hastings,  as  governor 
general  of  Bengal,  extended  the  territory  of  the 
British  empire,  and  brought  millions  of  the 
natives  of  India  under  British  rule.  If  he  ex 
ercised  power  in  India  for  which  there  was  no 
authority  in  British  laws  or  British  customs — 
if  in  the  exercise  of  that  power  he  acquired 
wealth  for  himself  or  permitted  others  to  accu 
mulate  fortunes  by  outrages  and  wrongs  per 
petrated  upon  that  distant  people,  he  still  acted 
in  his  public  policy  in  the  interest  of  the  Brit 
ish  empire  and  in  harmony  with  the  ideas  aud 
purposes  of  the  British  people. 

Andrew  Johnson  has  disregarded  and  vio 
lated  the  laws  and  Constitution  of  his  own 
country.  Under  his  administration  the  Gov 
ernment  has  not  been  strengthened,  but  weak 
ened.  Its  reputation  and  influence  at  home 
and  abroad  have  been  injured  and  diminished. 
He  has  not  outraged  a  distant  people  bound 
to  us  by  no  ties,  but  those  which  result  from 
conquest  and  the  exercise  of  arbitrary  power 
on  our  part;  but  through  his  violation  of  the 
laws  and  the  influence  of  his  evil  example 
upon  the  men  of  the  South,  in  whose  hearts 
the  purposes  and  the  passions  of  the  war  yet 
linger,  he  has  brought  disorder,  confusion, 
and  bloodshed  to  the  homes  of  twelve  millions 
of  people,  many  of  whom  are  of  our  own  blood 
and  all  of  whom  are  our  countrymen.  Ten 
States  of  this  Union  are  without  law,  without 
security,  without  safety;  public  order  every 
where  violated,  public  justice  nowhere  re 
spected;  and  all  in  consequence  of  the  evil 
purposes  and  machinations  of  the  President. 
Forty  millions  of  people  have  been  rendered 
anxious  and  uncertain  as  to  the  preservation 
of  public  peace  and  the  perpetuity  of  the  insti 
tutions  of  freedom  in  this  country. 

There  are  no  limits  to  the  consequences  of 
this  man's  evil  example.  A  member  of  his 
Cabinet  in  your  presence  avows,  proclaims, 
indeed,  that  he  suspended  from  office  indefi 
nitely  a  faithful  public  officer  who  was  ap 
pointed  by  your  advice  and  consent;  an  act 
which  he  does  not  attempt  to  justify  by  any 
law  or  usage,  except  what  he  is  pleased  to 
call  the  law  of  necessity.  Is  it  strange  that  in 
the  presence  of  these  examples  the  ignorant, 
the  vicious,  and  the  criminal  are  everywhere 
swift  to  violate  the  laws?  Is  it  strange  that 
the  loyal  people  of  the  South,  most  of  them 


38 


poor,  dependent,  not  yet  confident  of  their 
newly-acquired  rights,  exercising  their  just 
privileges  in  fear  and  trembling,  should  thus 
be  made  the  victims  of  the  worst  passions  of 
men  who  have  freed  themselves  from  all  the 
restraints  of  civil  government?  Under  the 
influence  of  these  examples  good  men  in  the 
South  have  everything  to  fear,  and  bad  men 
have  everything  to  hope. 

Caius  Verres  is  the  great  political  criminal 
of  history.     For  two  years  he  was  praetor  and 
the  scourge  of  Sicily.  The  area  of  that  country 
does  not  much  exceed  ten  thousand   square 
miles,  and  in  modern  times  it  has  had  a  popu 
lation  of  about  two  million  souls.      The  re 
spondent  at  your  bar  has  been  the  scourge  of  a 
country  many  times  the  area   of  Sicily  and 
containing  a   population   six  times  as  great. 
Verres  enriched  himself  and  his  friends;  he 
seized  the  public  paintings  and  statues  and 
carried  them  to  Rome.     But  at  the  end  of  his 
brief  rule  of  two  years  he  left  Sicily  as  he  had 
found  it;  in  comparative  peace,  and   in   the 
possession  of  its  industries  and  its  laws.     This 
respondent  has  not  ravaged  States  nor  enriched 
himself  by  the  plunder  of  their  treasures  ;  but 
he  has  inaugurated  and  adhered  to  a  policy 
which  has  deprived  the  people  of  the  blessings 
of  peace,  of  the  protection  of  law,  of  the  just 
rewards  of  honest  industry.     A  vast  and  im 
portant  portion    of   the   Republic,  a   portion 
whose  prosperity  is  essential  to  the  prosperity 
of  the  country  at  large,  is  prostrate  and  help 
less  under  the  evils  which  his  Administration 
has  brought  upon  it.     When  Verres  was  ar 
raigned  before  his  judges  at  Rome,  and  the 
exposure  of  his  crimes  began,  his  counsel  aban 
doned  his  cause  and  the  criminal  fled  from  the 
city.     Yet  Verres  had  friends  in  Sicily,  and 
they  erected  a  gilded  statue  to  his  name  in  the 
streets  of  Syracuse.     This  respondent  will  look 
in  vain,  even  in  the  South,  for  any  testimonials 
to  his  virtues  or  to  his  public  conduct.     All 
classes  are  oppressed  by  the  private  and  public 
calamities  which  he  has  brought  upon  ihera. 
They  appeal  to  you  for  relief.  The  nation  waits 
in  anxiety  for  the  conclusion  of  these  proceed 
ings.     Forty  millions  of  people,  whose  interest 
in  public  affairs  is  in  the  wise  and  just  admin 
istration  of  the  laws,  look  to  this  tribunal  as  a 
sure  defense  against  the  encroachments  of  a 
criminally- minded  Chief  Magistrate.  _ 

Will  any  one  say  that  the  heaviest  judgment 
which  you  can  render  is  any  adequate  punish 
ment  for  these  crimes?  Your  office  is  not 
punishment,  but  to  secure  the  safety  of  the  Re 
public.  But  human  tribunals  are  inadequate 
to  punish  those  criminals  who,  as  rulers  or 
magistrates,  by  their  example,  conduct,  policy, 
and  crimes,  become  the  scourge  of  communi 
ties  and  nations.  No  picture,  no  power  of  the 
imagination  can  illustrate  or  conceive  the  suf 
fering  of  the  poor  but  loyal  people  of  the  South. 
A  patriotic,  virtuous,  law-abiding  Chief  Magis 
trate  would  have  healed  the  wounds  of  war, 
soothed  private  and  public  sorrows,  protected 


the  weak,  encouraged  the  strong,  and  lifted 
from  the  southern  people  the  burdens  which 
now  are  greater  than  they  can  bear. 

Travelers  and  astronomers  inform  us  that  in 
the  southern  heavens,  near  the  Southern  Cross, 
there  is  a  vast  space  which  the  uneducated  call 
the  hole  in  the  sky.  where  the  eye  of  man  with 
the  aid  of  the  powers  of  the  telescope  has  been 
unable  to  discover  nebulae,  or  asteroid,  or 
comet,  or  planet,  or  star,  or  sun.  In  that 
dreary,  cold,  dark  region  of  space,  which  is 
only  known  to  be  less  than  infinite  by  the  evi 
dences  of  creation  elsewhere,  the  Great  Author 
of  celestial  mechanism  has  left  the  chaos  which 
was  in  the  beginning.  If  this  earth  were 
capable  of  the  sentiments  and  emotions  of  jus 
tice  and  virtue,  which  in  human  mortal  beings 
are  the  evidences  and  the  pledge  of  our  divine 
origin  and  immortal  destiny,  it  would  heave 
and  throe,  with  the  energy  of  the  elemental 
forces  of  nature,  and  project  this  enemy'  of  two 
races  of  men  into  that  vast,  region,  there  for 
ever  to  exist  in  a  solitude  eternal  as  life,  or  as 
the  absence  of  life,  emblematical  of,  if  not 
really,  that  a  outer  darkness"  of  which  the 
Saviour  of  man  spoke  in  warning  to  those  who 
are  the  enemies  of  themselves,  of  their  race, 
and  of  their  God.  But  it  is  yours  to  relieve, 
not  to  punish.  This  done  and  our  country  is 
again  advanced  in  the  intelligent  opinion  of 
mankind.  In  other  Governments  an  unfaithful 
ruler  can  be  removed  only  by  revolution,  vio 
lence,  or  force.  The  proceeding  here  is  judicial, 
j  and  according  to  the  forms  of  law.  Your  judg 
ment  will  be  enforced  without  the  aid  of  a 
I  policeman  or  a  soldier.  What  other  evidence 
I  will  be  needed  of  the  value  of  republican  insti- 
1  tutions?  What  other  test  of  the  strength  and 
vigor  of  our  Government  ?  What  other  assur 
ance  that  the  virtue  of  the  people  is  equal  to 
any  emergency  of  national  life  ? 

The  contest  which  the  House  of  Represent 
atives  carries  on  at  your  bar  is  a  contest 
in  defense  of  the  constitutional  rights  of  the 
Congress  of  the  United  States,  representing 
the  people  of  the  United  States  against  the 
arbitrary,  unjust,  illegal  claims  of  the  Execu 
tive. 

This  is  the  old  contest  of  Europe  revived  in 
America.  England,  France,  and  Spain  have 
each  been  the  theater  of  this  strife.  In  France 
and  Spain  the  executive  triumphed.  In  Eng 
land  the  people  were  victorious.  The  people 
of  France  gradually  but  slowly  regain  their 
rights.  But  even  yet  there  is  no  freedom  of 
the  press  in  France ;  there  is  no  freedom  of  the 
legislative  will ;  the  emperor  is  supreme. 

Spain  is  wholly  unregenerated.      England 
j   alone  has  a  free  Parliament  and  a  government 
|   of  laws  emanating  from  the  enfranchised  peo 
ple.      These  laws  are  everywhere  executed, 
and  a  sovereign  who  should  willfully  interpose 
any  obstacle  would  be  dethroned  without  de 
lay.     In  England  the  law  is  more  mighty  lhan 
the  king.     In  America  a  President  claims  to 
be  mightier  than  the  law. 


39 


This  result  in  England  was  reached  by  slow 
movements,  and  after  a  struggle  which  lasted 
through  man}'  centuries.     John  Hampden  was 
not  the  first  nor  the  last  of  the  patriots  who  j 
resisted  executive  usurpation,  but  nothing  could  j 
have  been  more  inapplicable  to  the  present  cir-  j 
cumstances  than  the  introduction  of  his  name  j 
as  an  apology  for  the  usurpations  of  Andrew 
Johnson. 

"No  man  will  question  John  Hampden' s 
patriotism  or  the  propriety  of  his  acts  when 
he  brought  the  question  whether  ship-money 
was  within  the  constitution  of  England  before 
the  courts;"  but  no  man  will  admit  that  there 
is  any  parallel  between  Andrew  Johnson  and 
John  Hampden.  Andrew  Johnson  takes  the 
place  of  Charles  I,  and  seeks  to  substitute  his 
own  will  for  the  laws  of  the  land.  In  1G36 
John  Hampden  resisted  the  demands  of  an 
usurping  and  unprincipled  king,  as  does  Edwin 
M.  Stanton  to-day  resist  the  claims  and  de 
mands  of  an  unprincipled  and  usurping  Pres 
ident. 

The  people  of  England  have  successfully 
resisted  executive  encroachments  upon  their 
rights.  Let  not  their  example  be  lost  upon  us. 
We  suppressed  the  rebellion  in  arms,  and  we 
are  now  to  expel  it  from  the  executive  coun 
cils.  This  done,  republican  institutions  need 
no  further  illustration  or  defense.  All  things 
then  relating  to  the  national  welfare  and  life 
are  made  as  secure  as  can  be  any  future 
events. 

The  freedom,  prosperity,  and  power  of  Amer 
ica  are  established.  The  friends  of  constitu 


tional  liberty  throughout  Europe  will  hail  with 
joy  the  assured  greatness  and  glory  of  the  new 
Republic.  Our  internal  difficulties  will  rapidly 
|  disappear.  Peace  and  prosperity  will  return 
to  every  portion  of  the  country.  In  a  few 
weeks  or  months  we  shall  celebrate  a  restored 
Union  upon  the  basis  of  the  equal  rights  of 
the  States,  iji  each  of  which  equality  of  the 
people  will  be  recognized  and  established.  This 
respondent  i^  not  to  be  convicted  that  these 
things  may  cj)me,  but  justice  being  done,  these 
things  are  tOjCome. 

At  your  bj,r  the  House  of  Representatives 
demand  justice— justice  for  the  people,  justice 
to  the  accuseu.  Justice  is  of  God,  and  it  can 
not  perish,  py  and  through  justice  comes  obe 
dience  to  thelaw  by  all  magistrates  and  peo 
ple.  By  and^hrough  justice  comes  the  liberty 
j  of  the  law,  wlich  is  freedom  without  license. 

Senators,  SB  far  as  I  am  concerned,  the  case 

I  is  now  in  you^hands,  and  it  is  soon  to  be  closed 

I  by  my  associate.     The  House  of  Representa- 

j  tives  have  presented  this  criminal  at  your  bar 

with  equal  comdence  in  his  guilt  and  in  your 

disposition  to  administer  exact  justice  between 

Sim  and  the  people  of  the  United  States. 

His  conviction  is  the  triumph  of  law,  of 
;  order,  of  jostle.  I  do  not  contemplate  his 
I  acquittal — it  is  mpossible.  Therefore  1  do  hot 
j  look  beyond.  But,  Senators,  the  people  of 
j  America  will  river  permit  an  usurping  Exec 
utive  to  breakdown  the  securities  for  liberty 
provided  by  th  Constitution.  The  cause  of 
the  Republic  isnn  your  hands.  Your  verdict 
of  guilty  is  pea\  to  our  beloved  country. 


• 


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